Limitation (Childhood Abuse) (Scotland) Bill

The Convener (Margaret Mitchell)

Good morning and welcome to the Justice Committee’s sixth meeting in 2017. Agenda item 1 is an evidence-taking session on the Limitation (Childhood Abuse) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a paper by the Scottish Parliament information centre.

I am particularly pleased to welcome our panel members. We have two panels today, and the first comprises Graeme Garrett, a solicitor from the Association of Personal Injury Lawyers; David Whelan and Harry Aitken, both representing Former Boys and Girls Abused in Quarriers Homes; Sandy Brindley, national co-ordinator of Rape Crisis Scotland; and Laura Baxter, operations manager with Victim Support Scotland.

We move straight to questions. I will start with a general question. To state the obvious, the bill removes the three-year limitation period when the court action in question is about child abuse, with retrospective effect. What are your views on the proposed change? What impact would the new law have on survivors?

David Whelan (Former Boys and Girls Abused in Quarriers Homes)

I am a victim of abuse. In my case, there was a criminal conviction, and then there was a civil case that was time barred. We commend the Scottish Government for introducing the bill, which has the support of survivors. The bill’s benefit would be that injustices of the past would be righted. There is an absurd position in Scotland in which there is a conviction in a criminal case, but when your case goes into the civil court process, it is time barred.

I want to give committee members a little bit of personal background as it is important that you really understand in order to have a view on what has happened with those cases in the past.

Quarriers, its insurers and its legal teams have tried to usurp the criminal jury process with the tactics and antics that they have used in the civil process. They have made people such as me go to see so-called false memory experts such as Dr Janet Boakes; they challenged the testimony that I gave in the criminal court, which was upheld by a jury and an appeal court; and they have further damaged and harmed victims by not addressing the original harm. Therefore, the law needs to be changed.

The civil process is also antiquated—it is Victorian. Lady Smith made some comments in relation to my case about why I did not come forward, but I was never asked to give evidence to explain that delay. That is a major fault in the civil court process as, if I had been able to go and speak about that delay, that would have been helpful to Lady Smith, who—incidentally—is the chair of the Scottish child abuse inquiry.

The Convener

That is a helpful start. Do you feel that it is an anomaly that there is no time bar in criminal cases, but that there is in civil cases, and that the bill would right that anomaly?

David Whelan

We believe that it would. The time bar definition in the current legislation is too narrow and is a bar to progressing cases through the civil courts, so it needs to be widened. The insurers are organisations with a vested interest and they will challenge what needs to be done, but justice needs to be done and delivered for survivors.

Graeme Garrett (Association of Personal Injury Lawyers)

My organisation strongly supports the bill, because victims of abuse have been denied a voice for the past 50 years. They have seldom been in the position of being able to say in open court what happened to them. That is because limitation has acted as a brick wall that they have come up against. The bill is not a panacea, as victims will still face a number of significant obstacles before they are awarded compensation, but it is an important step in giving them a voice.

The Convener

Thank you; that is helpful.

Harry Aitken (Former Boys and Girls Abused in Quarriers Homes)

I support what David Whelan has said. David and I have been on this journey together for 15 years. This is the first time that I have ever exposed myself to the cameras. The issue is so important that I felt that today I had to come out into the open. I have a public face as well as a private face, which I have tried at all times to defend and protect. Today, because of the importance and significance of the dimension of access to justice for survivors, I wanted to come here to speak to you.

I support the bill on a number of grounds, but primarily because it has come at long last, after all our campaigning and our discussions across the spectrum—with Cabinet ministers and MSPs and with the Scottish Human Rights Commission and the centre for excellence for looked after children in Scotland at the University of Strathclyde. We have spoken to all those agencies about access to justice, which is a fundamental requirement for survivors and the fundamental right of survivors.

So many barriers have been placed in the path of survivors—it has been a diabolical disgrace to the people of Scotland. The rights of survivors have been infringed; every impediment has worked to their detriment. It seems quite easy for a care provider to lodge a plea of time bar and then leave it to the courts to deal with, while the prejudice to the survivors in that situation is tantamount to further abuse.

David referred to Dr Janet Boakes. She absolutely abused people who had been in court and who had gone through all the child abuse, retraumatising them and causing so much consternation in the minds of survivors and the community that very few of them have come forward since that time.

However, on the books of Cameron Fyfe, a Glasgow lawyer, we have 1,000 survivors who were prepared to come forward when they thought that there would be an opportunity for access to justice. However, as soon as legal aid provision was removed, those 1,000 people were abandoned.

On the time bar and the discretion of the judiciary, in not one case from a historical situation in residence was the discretion of the judge invoked since 1973—not one case. That was from 1973 until 2013—40 years. Lady Smith presided over eight cases lodged by former Quarriers residents. In each case discretion was refused. Four of them had already been proven in the criminal court; the former residents had secured convictions against their abuser, but still discretion was refused. It was only in October 2013 that Lord Kinclaven saw the light and said, “This is the time when the discretion must be invoked. That is my power.”

Lord Kinclaven gave that opportunity to a well-known case of an uncle versus a niece. There was child abuse in the home—it was a kinship care abuse situation, not a residential care situation. Lord Kinclaven said that there was sufficient evidence from the criminal court to proceed with the case and, more than that, that there would be no prejudice to the defendant. There was no prejudice to the defendants that we had to face in our cases, yet Lady Smith presided over those eight cases and not one was allowed to proceed.

10:15  

Therefore, we advise the bill, we recommend it and we support it. It will have a dramatic impact on the lives of survivors—the thousands of survivors in this country who have suffered the most terrible and horrific abuse. They are still suffering from that abuse to this day. That becomes much more evident as we get older. As they grow older, every survivor loses resilience and resource, and the effects of the trauma that they suffered in childhood surface. They have tried at all times to protect their families and friends. However, ultimately, the trauma surfaces. Do you know what happens to the survivors? In many cases, they end up in hospital, the criminal justice system or prison. Worst of all, there are friends of ours who have suffered so badly that they have taken their own lives.

The Convener

We very much appreciate all the panellists coming forward, because it takes a lot of courage to come before a committee and to give evidence in the public domain.

If I can paraphrase Mr Aitken a little bit, the bill is not a panacea, but it is a major step in removing some of the barriers that he eloquently described in his testimony. To go a little bit further, Mr Aitken is probably also saying that, although the discretion was there in the courts to remove the time bar, that has not really been used to anything like—

Harry Aitken

It has never been invoked—not once in 40 years.

The Convener

That is very helpful. Do any of the other panellists wish to comment?

Sandy Brindley (Rape Crisis Scotland)

It is to survivors’ credit that they have had the bravery to fight for this change to what is seen—justifiably—as an injustice and a barrier to justice.

The nature of child sexual abuse or child abuse in general is that it can take people a long time to feel able to speak about it. Therefore, the time bar disproportionately affects child abuse survivors in a way that my organisation definitely sees as not being just.

The bill is welcome. I echo the comments about it not being a panacea, but it will improve access to justice, which is to be supported.

Laura Baxter (Victim Support Scotland)

First of all, we warmly welcome and support the bill. We know that there are numerous reasons why child abuse victims are unable to speak about that abuse within the three-year time limit. The bill would give them a voice. It would allow them to be heard and what they have been through to be recognised.

I met these gentlemen only this morning. I echo Sandy Brindley’s comments that it is very courageous for them to come forward, to speak about their abuse and to campaign on the issues. I am very impressed with their work.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

When the Scottish Government consulted on the impact of its proposals, some respondents said that a possible issue with the bill is that survivors would still have to revisit traumatic events with lawyers and in the court system. Is that concern about the need to relive traumatic events valid, or do the benefits outweigh the disadvantages for survivors?

David Whelan

The survivors have given their answer to that by publicly coming out and campaigning for the past 15 years for a change in the law. The survivors want this change.

The survivors who are in front of you today are stronger than other survivors. We are able to articulate what the possible benefits of the bill will be and to talk about everything else.

We have represented vulnerable people—many of whom are more vulnerable than ourselves—for many years. They have spoken in the media, they are speaking to the child abuse inquiry and they spoke through the national confidential forum. The Quarriers victims-survivors spoke to time to be heard.

It is false to say that people would not come forward if there was a change in the law. People would take the full benefit of such a change.

Rona Mackay

Do you think that that position represents the majority of survivors?

David Whelan

I definitely do.

Harry Aitken

The significance of the bill is that, at long last, survivors will have the choice. That element of choice has been denied to them up until now. We will make anyone we speak to aware of this. We speak to people quite frequently across the whole nation. Sometimes they are in England, but we will make people aware wherever they come from. My point is that they will already have heard that it will be a difficult task for them to go to court. They will have to have a robust case, that case will be cross-examined and it will have to stand up to the normal practices of the legal system. However, having made that choice and found the courage to go forward, I believe that that will fortify them.

The bill gives survivors an opportunity in their lives to demonstrate that they saw the matter through to the end and were not oppressed or suppressed by the system, which all of us have been from our childhood right through until now, when at long last the Scottish Government has given that opportunity. The impact on survivors will be dramatic, it will be positive and it will enlighten and enrich their spirit.

Rona Mackay

Thank you. That is very encouraging.

Douglas Ross (Highlands and Islands) (Con)

I have a small supplementary question. I am grateful for the evidence that we have heard so far. I can understand that victims are prepared to give evidence and that some have already done so in a criminal case. However, is there a concern that, with the vast numbers who could come forward and our already stretched justice system, it is not just giving evidence that could be a barrier to some? If the bill passes, they may get a peek at it and think that it is a great opportunity, but because of the numbers there may be a huge delay in some people actually getting their day in court. How do you think that survivors will deal with potential frustrations arising from the fact that they may have the opportunity to go to court, but because of the pressures on the court system, that may not happen immediately?

Graeme Garrett

I will come in on the issue of vast numbers. As I said, there are still a number of pretty serious obstacles facing anyone who wishes to seek compensation for historical abuse. The first is that many victims will have been abused not in institutions but by individuals. There has to be someone who is worth suing before a victim can seek compensation. Foster carers are likely to pose a particular difficulty, and the age of many of the cases means that the evidence may simply not be there.

Douglas Ross

What I am trying to say is that the cases that come to court will be complex by their nature and will take time to go through the process. Someone whose case is in the first tranche will get the satisfaction of having their evidence presented in court and, potentially, getting the correct outcome. However, my question is about how survivors—who have waited so long to get to this stage—will deal with the frustration of having to wait while other cases are heard before their own and the justice system potentially struggles to deal with that increase in cases. That is what I would like to hear about.

David Whelan

I think that there is scaremongering about the “vast numbers” that are going to come forward. It is scaremongering by the insurance companies to stop the Scottish Government bringing the bill forward. It is just another tactic that is being used. We have said already that robust evidence will be required and that will need to be scrutinised. If there is a preliminary hearing on a case, it may not proceed to the next process. The issue for us is that the victim must be brought forward to give their personal testimony to the first hearing, if they are able to, and to explain.

With all due respect, delays in the court system are not an issue for us to deal with; they are probably an issue for the committee to deal with. The courts should facilitate the justice process in a proper and expedient manner.

Sandy Brindley

I echo that point. There are resource issues for the court service as a result of the bill, but that should not be used as a reason not to improve access to justice. That is an issue for the Government to consider.

The Convener

The point is that survivors should see that opportunity to move forwards. That has been covered quite well.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I have a relatively small point that can be answered concisely. I just want to be clear that you are satisfied that, where the victim themselves might not be able to act—where they are intellectually disadvantaged would be one example, and there may be others—the bill will allow others to act on their behalf.

David Whelan

Yes, of course. Clearly, victims will have legal representation if the bill is enacted, and those representatives will be there to support them.

Stewart Stevenson

I am not making a legal point. The point that I am making is about the carer for somebody who has been abused—it is about that side of the equation.

David Whelan

Whoever the person nominates to represent them, the bill should still assist their case.

Stewart Stevenson

I am sorry. I am going to be very precise. Some people might not have the capability to make such a nomination. That is the point that I am getting at. I am not trying to open this up too much. It is just to make sure that, when we talk about victims, we are not restricted to victims who have the ability to make all the decisions in their lives for themselves. I am just asking whether you are satisfied that we are covering that group of people.

David Whelan

Clearly, we would want every victim of child abuse who has a case to proceed no matter what their disabilities are or whether they are incapacitated. Many survivors will have been in the mental health system because of what happened to them. Again, it would be an indictment on the system if they were not allowed to be heard.

Stewart Stevenson

That is helpful. We have got that on the record, and that is what I wanted.

The Convener

Are we also talking about advocacy, where the person brings the case, but someone is the advocate for them—not necessarily an advocate in a legal sense but someone who is able to articulate their case perhaps better than the victim could?

David Whelan

Can I call you Margaret?

The Convener

Yes, absolutely.

David Whelan

Margaret, that has been happening in past cases, in which people from organisations such as Sandy Brindley’s and Victim Support Scotland have acted as advocates for survivors. We would wish that to continue, because we are dealing with some of the most vulnerable people, who have been let down by society in that the state has failed in its duty of care.

The Convener

We have a number of questions, so we will move on.

Harry Aitken

I would like to make a comment. This is a practice that we have used for some years now and which is strengthening in Scotland. We have just established the survivor support fund, which has 26 partners, all with expertise in the different domains of trauma and the requirements that survivors have. There will be an opportunity, across the spread, in Scotland for people to have an advocate and to have support, which they already do—whether that is on children’s files or in going to court or meeting any panel that they have to meet. That has already happened and it is embedded in the system now. It works extremely well, because we have very proficient, sympathetic and understanding support workers who do that for us.

Something that I meant to say on Douglas Ross’s point is that, if it is really well organised, the first tranche of cases will be the frail, the infirm and the elderly. If going through that process helps them, they might die happy—I am sorry to be so blunt, but that is what we feel about it. The outcome of that first tranche of cases might provide the impetus for a further swell of cases coming forward. That is easily supported by evidence from around the world—from Australia, Ireland and Canada. All that has happened, so we have a good bank of information that will support us in understanding those processes.

I do not see any real problem if a person is, at long last, given the choice to make their own mind up as to whether they want to go through the court system or to wait until they get redress and take their case through that process. After all, we still have to deal with the 1964 issue, which might crop up in your questioning today. We know of survivors in their 70s, 80s and 90s, who will—I hope—be the first people to be exposed to that opportunity. The methods that are in place will suffice. They will work well, as they have done up until now, and I see no impediment to those people getting access to whatever means of support or outlet they want.

10:30  

John Finnie (Highlands and Islands) (Green)

Good morning, panel, and thanks for your evidence.

You will be aware that, although the bill enjoys a lot of support—I support it—there are critics of it. I would welcome your comments on one of the points of criticism, which is that, if the bill proceeds, in the new regime cases will be decided on the basis of poor-quality or limited evidence. Furthermore, it is said that the new regime will draw what are considered to be scant resources away from other areas. Could you comment on that, please?

David Whelan

What was the last bit of your question?

John Finnie

It was about the suggestion that the resources that will be required to support the new regime will be redirected away from other valuable areas.

Harry Aitken

I understand that concern, but we must look at the evidence from around the world. We must look outside Scotland, because we have fallen behind. However, we are catching up quickly. Fifteen years is not a long time in the life of a survivor compared with the length of time that people in other jurisdictions have had to wait.

The idea that there would be a paucity or a lack of evidence has been debunked. In many cases, people have been able to present their case to the criminal courts and have been successful on the basis of the evidence that is available. That has not happened in every case; I agree that it is extremely difficult. Among the obstacles that we have to confront are the loss and the deliberate destruction—which Tom Shaw reported in his systemic review—of children’s files. All those matters can be taken into account, but in other jurisdictions sufficient evidence has been gathered to support a robust case, and we are happy to hear that.

On the point about drawing resources away from other elements of society, that does not really bother us. It is not our concern, because we are all taxpayers. Is it not time for the jurisdiction of Scotland to demonstrate what it means when it says that it will support survivors and Scotland’s poor and vulnerable people? It would be quite easy for the necessary resources to be allocated.

The figure that the Scottish Government has come up with for survivors coming forward is 2,200, only 10 per cent of whom will go forward to the courts. Therefore, it is not a monumental task, but it is an important one. We say that we believe in the rights of people in this country, but although defenders’ rights are very well protected through article 6 and article 1 of the European convention on human rights, over the years the rights of the individual have, in many cases, been flaunted and ignored.

If the Scottish Government is serious, I am sure that it will find a way of supporting the system and getting us through the process.

David Whelan

On the point about resources, the streets are littered with the damage that has been done to the victims. Significant resources have to be put into the NHS, voluntary groups and other areas to address and repair the damage that has been done. I think that another amount of resource to finish the process and ensure that justice is delivered will be a resource well spent.

John Finnie

Thank you. It is important that we address the criticisms, and it was helpful to get that on the record.

Mary Fee (West Scotland) (Lab)

Good morning. An alternative approach that has been suggested by opponents of the bill would be to provide—whether by statute or by other means—for more guidance to be provided to judges on how they should exercise their discretion under the Prescription and Limitation (Scotland) Act 1973. Mr Aitken, you have already commented on judges’ ability to use their discretion. Would you like to make any additional comments on that before other panel members say what they think about the proposal?

Harry Aitken

I confirm what I said. Judges were always advised about that. They knew the substance of the act and understood their discretionary powers. We should not forget that their discretion was full and unfettered—that is the language that is used—but they still did not allow cases to proceed.

I have read the judgments carefully, particularly the judgment of Lady Smith in the Quarriers case, and, in many cases, I, as a layperson, saw opportunities for the powers to be invoked. I certainly saw that Lady Smith had such an opportunity, but she did not take it. That is not to get at Lady Smith—she just happened to be the person who presided over these cases.

That is not something that I think will bother us in the future, simply because the robustness of the system as it is defined by the Scottish Government just now means that you have to have a case that is backed up by robust evidence that can be tested in court. If the limitation element is removed, the strength of the court case system will be predicated on the effectiveness of that survivor’s case going further.

David Whelan

My understanding is that the bill will widen the awareness test. The judiciary have been very conservative—that is demonstrated by the fact that, as Harry Aitken said, judicial discretion has been used in only one case in all those years. The judiciary have to take responsibility for the judgments that they have passed in these cases, and they cannot just pretend that they are somewhere up there and are not accountable to the people. They are accountable to the people.

The widening of the awareness test should mean that the judiciary do not have an excuse to time bar a case. The widening of the definition of what child abuse is and what its effects are will support the judiciary to make the right decisions the second time around.

Sandy Brindley

The other benefit to legislating rather than relying on discretion is that it gives greater certainty to survivors about what the legislative framework is and what their options are. I do not think that the evidence suggests that we can rely on an approach that is based on discretion. I absolutely think that we need to legislate in this area so that we can give greater certainty to survivors in these difficult circumstances.

Mary Fee

So the use of discretion does not give survivors any confidence.

Sandy Brindley

I do not think that it gives any certainty about what the approach is likely to be. I completely understand that, based on past experience, survivors would not have confidence in that approach, simply because discretion has been used so infrequently. In fairness to the judiciary, we are talking about a completely different legislative framework. I think that that is the right approach to take.

David Whelan

There must be certainty. The law needs to be clear—obviously, it is unclear at the moment. One of the lords—I cannot remember which—said that there is a mischief in the legislation that needs to be addressed, and I agree.

Harry Aitken

With regard to the opportunities that the survivors can avail themselves of, it is proposed by the Scottish Government in the bill that the awareness test will be looser in its interpretation. That is important. Research that has been done by CELCIS at the University of Strathclyde has found that it is, on average, 22 years before a survivor discloses their abuse—the time period is longer for men than it is for women. Under the new proposal, there is much more flexibility, which is important to how the system deals with the knowledge of the abuse and what people’s rights are.

The other element is the fact that it is also recommended that other factors should be added and that an exhaustive list of factors will be considered in the case of a survivor coming forward. I can think of two examples that I remember from the consultation. One concerns the question of what the care home or the management did when cases of child abuse were reported, what protections they put in place, what investigations they undertook and what actions they took, if anything was proven.

Secondly, as a child leaves the care system, they have a right to be informed of their rights, and it has been suggested by survivors that those rights should extend to the possibility of raising any complaints that they may have of their care system experience. That dramatic, radical approach would place the onus on the Scottish care system to protect the youngsters after they leave care, which would help.

The bill is shaping up to have a lot of great things in it for survivors that will help them in every dimension of their lives.

David Whelan

The defenders will still have the right to challenge every case. We recognise that right, and the bill will not remove it. If someone challenges a case properly—not by trying to discredit the victims or undermine the testimonies that are given in criminal courts—we recognise that they have the right to make that challenge. Nevertheless, it should be done properly.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Good morning. In Scots civil law, the notions of limitation and prescription stand alongside each other. The focus today is on access to justice for survivors, and the proposed new regime for limitation is about enhancing that. However, the Scottish Government has decided not to reform the related area of prescription, deeming that it would be inappropriate for it to do so because that would breach the European convention on human rights. The effect of that decision is that, under the new regime, if the abuse occurred before September 1964, it will not be possible for someone to raise a court action in relation to it. What are your thoughts on that? Do you think that the Scottish Government’s decision on prescription is appropriate?

David Whelan

I am a layperson. I place on record my thanks to Eleanor J Russell, who did the research into these historical abuse cases that I was able to submit to the committee.

Clearly, we would like every case to be able to proceed. However, through the Scottish Human Rights Commission’s interaction process, which we undertook over 18 months with the Government and all the other parties, we recognise the difficulties with pre-1964 cases and we are in discussion with the Scottish Government—as are other survivor groups and other parties—about commencing a discussion about redress. We have focused initially on pre-1964 cases because we recognise that it might not be possible for the law to be changed as much as we would like it to be changed for every survivor.

We recognise that there is an issue with the European convention on human rights that means that it may not be possible to change the law. In fairness, the Government has explained that to us in clear terms. I want to thank the Scottish Government because, over the past two years, ministers have taken time out from their brief to meet individuals and groups of survivors. They have taken the time to understand the issues that we have faced and they have brought forward a number of elements of the interaction review group’s plan, although some elements are still outstanding.

It is difficult for us as a survivor group. We want the law to help every survivor, but the Government has explained the situation to us. We recognise its position and fully support its engagement with us, through the interaction review group, on the action plan and other elements that will address that particular issue.

10:45  

Harry Aitken

May I chip in? We understand the problem. It is a dilemma for us, but I think that it has been resolved in the minds of the people that I have spoken to. Looking at me, you can tell that I am not 35 years old. We are able to talk the people we deal with through it as best we can. There has been a long negative problem with prescription, but it is substantive law, whereas limitation is procedural law. We understand that. When the law on prescription has to apply to pre-1964 cases, the minds of many—although not all—survivors are reconciled to the fact that the door is closed for them. It is a difficult pill to swallow, but at least we understand it.

There is a proposal that the best way to deal with the issue is to make sure that those people are treated fairly and appropriately in the redress scheme once that is up and running. If that is done sensitively and to the proper degree, it would satisfy the people who may not be with us for very much longer. At least they would see some recognition. They will take the pre-1964 dilemma to the grave with them.

Graeme Garrett

My organisation fully understands the reasons for the 1964 cut-off date. We feel that the class of case that this is likely to catch is the very class of case that would have struggled on evidential grounds anyway to establish a successful case.

The criminal injuries scheme, for entirely coincidental reasons, also operates a 1964 cut-off date. I sat as a tribunal judge on criminal injuries cases for 10 years and, during that time, I came across one or two cases at most that were caught by the 1964 rule. I do not believe that we are talking about significant numbers.

Ben Macpherson

That is reassuring. It is also reassuring to know from survivor groups that there is an understanding about the rule. One of the committee’s fears was about the potential for the bill to raise expectations about cases where there would not be access to justice through the new legislation. It is reassuring that there is wide understanding among survivors about the balance.

David Whelan

The Government has had the conversations. They have been open and transparent, and supportive of what the survivors wish to achieve within the interaction plan. Where there have been difficulties, the Government has taken the time to explain them.

The Convener

To follow up that point, you are saying that there is a realistic expectation of what is possible and what is not, and an understanding of the difficulties arising with the pre-1964 cases. Does it help where there is some redress or recognition that the abuse took place? You will be aware of the Apologies (Scotland) Act 2016. Does it help if the abuse has been acknowledged and if there is a commitment to look into the circumstances to ensure that it does not happen again?

David Whelan

Within the interaction plan that was agreed, there are a number of elements—apology law, redress, the national confidential forum and the public inquiry.

The apology law is certainly helpful. It will be helpful for the pre-1964 people but also for those whose cases will be heard. Some people may come forward and go to the civil process if this bill is enacted. All that they might want is an apology. The organisations will be able to give that apology without the fear of liability.

I did not support the apology law initially, as Margaret knows, because of the liability element. We recognise fully, however, that organisations need to be enabled to give an apology without the fear of liability. Redress is also important.

What the individual survivor wants is up to them. Some survivors might want three elements, whereas some might want just one. A sincere and meaningful apology is probably one of the most powerful things that can be given to someone, no matter what hurt and damage has happened.

The Convener

There is also the provision to look into the circumstances and see whether anything can be done to ensure that what has happened does not happen to anyone else. I know that that is a huge issue for survivors.

David Whelan

One of the drivers for the survivor groups is that we want to ensure that organisations are fit for purpose for the next generation of cared-for children in Scotland. We want to ensure that what has happened cannot happen to another generation of such children. We cannot prevent every single case, of course, but if the systems are robust and are investigated—for example, through the child abuse inquiry—we would expect institutions to be fit for purpose at the end of the process.

Harry Aitken

About six to eight years ago, a visiting professor came from Australia. That lady had dealt extensively with the apology law there—you might have seen her. I was present at a discussion that took place, which really allayed many of our fears simply because it gave the abused agency—for want of a better term—the freedom to express themselves to the survivors and give an apology. That was one good, human thing that worked extremely well. The visiting professor said that claims were accepted more readily in that process and fewer claims came forward on the basis of controversy. A pathway was made clear because an apology had been made.

An attempt was made during the time to be heard pilot forum under the aegis of Tom Shaw, Kathleen Marshall and Anne Carpenter. At the end of the process, it was said to the survivors, “By the way, we have this method called restorative justice. Would you like to take part in it?” Those people were at their most vulnerable, and some of them said, “Justice? Yes—that’s what I’m after,” so they were given that restorative justice method to pursue. Fifteen out of 98 opted to take it, and nine continued. My recollection is that only one person successfully completed the course. That was simply because the apology was meaningless and was given in the wrong context. It was not given by the right person in the right circumstances, and was not ratified and supported. That was a disgrace to the survivors. The people whom we had to support through that process were traumatised yet again.

I thank Margaret Mitchell for her sterling work in getting through the system an approach that has the stamp of authority, efficacy and permission. I believe that it will remove the burden from care providers and that the mighty and powerful insurers will no longer stifle and constrain them, so they will be able to make an apology. It will also remove another impediment. There will be no excuse, because people will be allowed to give an apology without liability. Therefore, I can see the merits of the approach.

The Convener

That is helpful. I think that you were thinking about Professor Prue Vines.

Harry Aitken

That is right.

David Whelan

It is important to say something about restorative justice. What Harry Aitken said about there being only one outcome demonstrates that that is not a model that would suit survivors.

Past processes have been criticised or have failed simply because we were not consulted. People put them there and said, “You’re going to be part of this.” The difference in the past two to three years has been that we have been consulted on the processes that directly affect us and we have been able to input into them. That is the way forward: the processes need to be victim-survivor centred. I recognise that the law might be different, but it should be able to support the survivors in getting access to justice.

Mairi Evans (Angus North and Mearns) (SNP)

I want to hear from each of you about how the terms “child” and “abuse” are defined in the bill. There has been some criticism about the definition—or lack of it—of “abuse” in the bill. Do you think that “abuse” is defined with sufficient precision in the bill so that survivors can be confident that their case will fall within the scope of the proposed new regime?

Sandy Brindley

We support as broad a definition as possible. It is welcome that the definition of abuse has been broadened beyond the initial definition, which referred to those who were in care. The definition should cover any form of abuse. Certainly, given the work that we do, I feel that the definition must cover all sexual offences. My understanding is that the definition in the bill is sufficiently broad. If we tried to be more specific, we could potentially limit the range of experiences that it would cover. As panel members have said, we want as wide a range of people as possible to be able to access the legislation. We are therefore content with the wording in the bill as it stands.

Harry Aitken

There is a slight hiccup in what has been said. Mental, physical and sexual abuse are well catered for in the bill, but there is another form of abuse, which emanates from the church environment. Survivors have always said to us—we put this forward on their behalf—that spiritual abuse should also be considered. That abuse affects a different dimension of a human being and it has to be dealt with; it is not addressed through dealing with mental, physical or sexual abuse. It is probably more damaging, because it affects the soul, heart and mind of a person. I would like to have seen it considered, given that it used to be included in our consultation documents. I note that it has been removed, but I would like to see it included in consideration again.

David Whelan

People were indoctrinated in the institutions in relation to religion, and the damage that that has done to people is quite extraordinary, because they were also abused by someone who was a faith person, such as a priest or someone else with a religious connection. The damage that was caused by that kind of mix is just unbelievable. What does indoctrinating a child in an institution with the Bible and abusing them at the same time do to them when they become an adult? We can see the damage that has been done in terms of people having mental health issues and being alcoholic and the fact that 40 per cent of former residents in the care system get involved with the criminal justice system. Not all those issues relate to the care system, but there is certainly an impact from people not being cared for properly as children.

Mairi Evans

Just to clarify, do you think that that should be specifically mentioned in the bill, or do you think that the current definition of abuse in the bill is broad enough to encapsulate that?

Harry Aitken

For the reasons that I have given, I do not think that the definition is broad enough. With regard to sections 19 and 17 of the 1973 act, discretion might come into play in a case, but we do not want any discretion, because with discretion comes confusion. With regard to the case that Lady Smith was involved with, I am not saying that she was confused, but she certainly did not use her discretion to our advantage. I would therefore like reference to spiritual abuse to be included in the bill for the sake of clarity and certainty so that the people who suffered that kind of abuse—not all of us did—will not be neglected, forgotten or abandoned. This brings together all the elements of our society in that it is not just the police, social services or the care providers; it is also the church, which is the foundation of our society, and we do not want it to escape the scrutiny that we hope the bill will allow us to do.

11:00  

The Convener

Fulton MacGregor and Liam McArthur have supplementary questions.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I thank the panel for the powerful evidence that we have heard today. I ask my supplementary to Mairi Evans’s question wearing my hat as convener of the cross-party group on racial equality. Following on from the discussion that we have just had, do you think that the bill and the definitions are broad enough to incorporate the challenges that many members of ethnic minorities face?

David Whelan

I support what Sandy Brindley said about the definition and widening the elements in the bill. Every bill should recognise every individual in society no matter their creed, religion or colour. One would hope that we are legislating for every individual in society.

Harry Aitken

There is no evidence in the bill that there will be exclusion, and that is comforting. If we take it that there is no exclusion, that means that everyone is included. With inclusion across the spectrum of creeds, genders and whatever, we will have the opportunity to allow people to avail themselves of the benefits of the law, and the bill as it stands will certainly support them in that endeavour. At this late stage, having gone through the whole process and, ultimately, attempting to right the wrongs of the past, we cannot make a simple mistake such as that, and from the way that I read the bill, I do not see any evidence that that could happen.

Fulton MacGregor

Thank you. It was important to get that on the record.

Liam McArthur (Orkney Islands) (LD)

I join others in thanking you for the clarity of your evidence this morning. You set out clearly the point about spiritual abuse. Mr Whelan, you talked about the quality of the engagement that you have had with the Scottish Government at ministerial and official levels. Has there been an explanation of why they were reluctant to take that point on board? We can raise the issue with the minister in due course, but I am interested to know what explanation you have been given for why that has not been encapsulated in the definition of abuse.

David Whelan

To be honest, we did not ask that question. We discussed it in our survivor group, and Harry Aitken might have raised it, but it would be unfair of me to say that we asked the Scottish Government specifically about that. We asked about the definitions in the bill and we are satisfied that they are as wide as they can be at this point in time. Clearly, if they can be made wider, we would welcome that.

Harry Aitken

A particular section of our society, who are in the minority, feel the impact of spiritual abuse more than others. We did discuss it—it was discussed at the consultations—and I saw it in some of the literature, but it has not filtered its way through to the bill. I am putting forward a case for the views and fears of that substantial minority also to be represented in the bill. It would be to their detriment if we did not do that.

Liam McArthur

The Government will be following the evidence this morning and we can follow that up in due course. Thank you.

The Convener

The bill mentions “emotional abuse”. Do you feel that that does not cover that particular aspect?

Harry Aitken

That is not sufficient, because we all feel emotion. We start with feelings, emotions and thoughts and then we move to actions. That is the way the human species operates. We all feel different scales and levels of emotion and there are different formats and expressions, but I am trying—as a layperson—to explain that this is something that is fundamental to a human being. It is not just an item of experience; it is something that gets right into the bones and the soul. If we overlook that part, it will be to the detriment of the substantial group in the community that I have identified.

The Convener

I will probe a little further. As has often been said, show me the child at seven. From a religious point of view, it is almost as though a moral code has been tampered with in some way. Is that the kind of thing that emotional abuse would not cover but spiritual abuse might?

David Whelan

It is not one institution, so we would not want to define spiritual abuse as applying to one institution. It is about equality and recognising the issue. It does not matter what the label is on the institution, whether Catholic, Protestant or whatever; it is about that specific abuse type.

The Convener

Thank you. That is helpful.

We have covered all the supplementary questions on that, so Liam McArthur can ask his substantive question.

Liam McArthur

Just turning to the issue—

The Convener

Sorry, was it you, Liam? Yes it was, I think.

Liam McArthur

We have had a discussion about rights of discretion—

The Convener

I am sorry, it was not you, Liam.

Liam McArthur

I know. That is why I am slightly thrown. Do you want me to continue?

The Convener

We will go to where we should be. I do not want to throw you. It should be Stewart Stevenson.

Stewart Stevenson

Thank you very much. I will explore the effect of the insertion of proposed new section 17C into the 1973 act. I am addressing my questions to Graeme Garrett in particular. They are about the technical stuff that the committee gets involved in. I am concerned less about the underlying policies and more about whether the words in the bill implement the policies that we want.

Mr Garrett has some concerns about how new section 17C is drafted, particularly on the relationship between the amount that was paid out in a previous case and the pursuer’s expenses. I want to ensure that he has the opportunity to put that on the record and that I have the opportunity to test it.

Graeme Garrett

Our concern is that, if it is the intention to permit people who have previously brought actions to bring fresh actions—which it clearly is—there is a provision in new section 17C that will eliminate a large group of those people at source. We fail to understand the rationale for saying that someone who may have received what would have been a trivial payment many years ago should be prevented from bringing a claim for full and proper compensation now. As far as we can see, the matter was not rehearsed in the consultation. We are not sure where it has come from and we simply do not understand the rationale behind it.

If the intention is to avoid double compensation, the provision goes very far beyond that. It would be relatively simple to say that anything that had been received as compensation in a previous action should be offset against any damages that were obtained in future. However, that is not what the bill says and new section 17C is likely to have damaging consequences for the group of people who previously attempted to do something about the abuse. That seems to us to be extremely unfair.

Stewart Stevenson

I take it that your issue is with new section 17C(4)(b)(iii), which reads:

“any sum of money which it required the defender to pay to the pursuer”.

Graeme Garrett

Yes, and section 17C(5), which follows on from that.

Stewart Stevenson

Indeed. As a committee member, I confess to being puzzled about where that might come from and exactly what cases it is intended to allow to progress and which it is intended to stop. Do you have any insight into that? I am not sure that I understand it from anything that the Government has said.

Graeme Garrett

It came as a great surprise to us when we looked at the draft bill. We simply could not see the rationale for that. We could not see what evil it was trying to correct. In fact, it seems to us to create an entirely new evil in that people who may have received what they regarded at the time as insulting levels of compensation will now meet yet another brick wall that will prevent them from pursuing a claim for full compensation. That seems to us to be entirely wrong.

Stewart Stevenson

I suspect it is simply confirming in my mind that we need to raise this matter with the Government when it appears before the committee.

I see that Mr Whelan wants to come in. If I may, I just want to finish with one particular point.

Mr Garrett, in referring to a previous payout being offset against any new payout, have you a proposal for how the previous payout, which might have been made two decades earlier, should be valued when deciding on the sum of money that should be offset against the new payout? If it was a small payout, and if nothing was done, that would magnify the size of the payout that they would get now. If, on the other hand, it is index-linked forward to today, it will reduce the size of the payout. Have you views about what properly should be done?

Graeme Garrett

It could be offset as a straight arithmetical deduction. When the court does an interest calculation, which it would have to do, it would have to credit interest on the earlier payment, which would be offset against any payout. The earlier payment, together with accumulated interest, would then be offset against the fresh damages. That seems to be a perfectly workable system.

Stewart Stevenson

The courts would use the standard discount that is applied in those circumstances.

Graeme Garrett

The discount rate would apply only to future damages; it would not apply to past damages.

Stewart Stevenson

Yes, but there is a discount rate that could be used from the point of—let us not get too bogged down. We will ask the Government; that is what it boils down to.

Mr Whelan had a point while I was pursuing this quite technical point.

David Whelan

Part of our campaign for the bill was that we wanted the cases that had been tried in the criminal courts and had been time barred in the civil courts to be re-heard. That is definitely part of our campaign.

When a case has been time barred in the civil courts, they have used a Latin term—I am not sure that I can even say it: absolutum—which means that the case cannot be brought back to the court. To be quite honest, I did not understand that at the time. As I said in my correspondence with the committee, legal aid was withdrawn. I wrote to the Court of Session and I asked for my letters to be put on the record and put on to my file, and I said that, should the law ever change, I reserved the right to bring a case in future.

It is important that people whose cases have been time barred are given a proper opportunity. I specifically want to put it on the record that, when there has been a criminal conviction, those cases should never have been time barred.

I do not want to labour the point but, by their actions, the defenders and their organisations, including Quarriers, have made the whole process adversarial. If they had taken a different approach in the early days, I do not believe that the process would have become as adversarial as it has become. The defenders were very adversarial in 2003 to 2007.

Quarriers has to take some responsibility for that and for the actions of its insurers and its solicitors in the civil court processes. The harm and damage that they have done to people, including me, is enormous.

Stewart Stevenson

May I intervene there? I suspect that that is the point that Liam McArthur wants to develop with you. My point was quite a narrow technical point about new section 17C, which is about the civil cases, without reference to criminality.

Harry Aitken

I have a comment on your specific point. To take an example, the Dumfries and Galloway Monkland Home gave ex gratia payments to all its residents, to the tune of £20,000 each. That sum was compensation to cover any or all abuse that they had been subjected to, and we felt that it was one size fitting all. There was no gradation of the abuse that people had suffered.

Some people who said that their abuse was fairly slight and gained £20,000 might come forward under the new bill with the possibility of gaining compensation again. That is one possibility. The other possibility is that somebody who was severely abused and badly damaged, who was awarded £20,000, might come forward and that £20,000 would become the factor that you would manipulate to see fairness being done.

11:15  

I do not think that the provision should be included in the bill. If you want to calculate any compensation using discount rates and net present values, that could be done, but not to the detriment of survivors; it must be whole-heartedly in the spirit of the legislation, taking into account the severity, gradation and duration of the abuse and all other relevant matters.

The Convener

What about the question whether the onus will be on the pursuer or the defender to prove to the court the details of any past settlement? You make the point that that is not clear in the bill.

Graeme Garrett

That is not at all clear. There are two issues. The first is a point of principle, and it is the main issue. Is it fair that, because of this proposed new section, people will end up receiving less than full compensation? I suggest that it is not.

Allied to that, there are a number of practical difficulties that claimants and insurers will face in working out what happened in a previous litigation. As we say in our paper, solicitor files may no longer exist and insurance records may be scanty. Most court actions are settled by a document called a joint minute, which does not set out the settlement terms. The claimants may have been very young and the claims may have been settled on their behalf by parents or social work departments, so they may be completely unaware of the settlement terms.

If new section 17C remains in the bill, those will be the serious practical difficulties for claimants and some guidance needs to be given as to where the onus lies. Is the onus on the claimant to prove that he did not receive a payment, or is it on the compensator to prove that he did? It may seem a narrow issue, but we suggest that it is an important one.

Oliver Mundell (Dumfriesshire) (Con)

I do not have the legal knowledge to know whether this is the case—we can ask the Scottish Government in due course—but I wonder whether, given that you are talking about previous settlements and other things for which some facts have already been established, there might be a difficulty in having a fair trial the second time if some of the issues have already been thought about and decided. Perhaps that is why the proposed new section has appeared in the bill.

Graeme Garrett

Bear it in mind that there will rarely have been a trial dealing with the facts of the abuse. The cases, by definition, will have been dismissed on a procedural debate because of limitation, so the facts will never have been aired. The cases will have proceeded on the basis of written averments by each side.

Oliver Mundell

However, some of the facts will have been agreed within the legal parameters that existed at the time. Is that correct?

Graeme Garrett

With respect, I do not think that it is. I do not think that there will have been agreement. The second category is where the case was settled by agreement between the parties, and the same difficulties will arise in evidencing the terms of any such agreement given that the case may go back 20 or 30 years.

Liam McArthur

We talked earlier about discretion and the importance for survivors of confidence in and certainty around the process. The bill affords the court discretion to dismiss cases in two circumstances—where it would not be possible for a fair hearing to take place and where, in retrospective application, there would be substantial prejudice to the defender. There is not a great deal of detail about the application of those tests; we are led to believe that some of the detail will flow only from future case law.

Whereas I think that there has been unanimity across the panel until now, Rape Crisis Scotland and you, Mr Garrett, have not offered a view on new section 17D. I think that Victim Support Scotland said that it was a “reasonable” provision, but Mr Whelan, you have expressed that it is appropriate for all cases to be given a

“fair hearing of facts and evidence”.

I am interested to know where the panel members stand on those two tests, bearing it in mind that how they would be applied has not been tightly defined.

Graeme Garrett

I can be very brief on that point. My organisation recognises that those checks and balances are probably necessary. Whether they are in the bill or not, as a matter of law the court would have to apply them anyway, because of human rights legislation. Even if the bill were silent on those issues, the position would be much the same.

Liam McArthur

Given that, are you able to predict how the tests would be applied, because of how they are applied elsewhere in law?

Graeme Garrett

Yes. Those are not novel concepts for judges. Judges, by and large, are pretty good at dealing with them on a case-by-case basis.

Liam McArthur

Going back to the earlier point about the problem with discretion and the application of the time bar, is there a concern that new section 17D might be used in a way that could almost reintroduce the time bar, although perhaps not to the same extent?

Graeme Garrett

I think perhaps not to the same extent. Anyone who has looked at this matter over the years would be forced to conclude that the Scottish judiciary is an extremely conservative body and that it has operated the discretionary power in a way that has simply closed the door, which has not happened south of the border.

There is a legitimate fear that the provisions might simply transfer the discretionary power to a later stage of the case, but it would be our hope that, by getting rid of limitation, the damage that the provisions could do would be greatly reduced, if not eliminated.

Liam McArthur

Mr Whelan, does that bear out your concerns?

David Whelan

Again, I am not a legal person, but we would want any discretion and the provisions to be as wide as possible, so that there is no element of doubt. We would want certainty in the bill, so that it is clearly directing what the judges are able to do, without any element of doubt. In layman’s terms, that is what we would like to see.

Sandy Brindley

I think that you are right. We did not pick up the point in our written submission, but we have been contacted by survivors who have expressed concern about how the tests might operate in practice, particularly for certain religious institutions, and whether they might restrict the benefits of the bill.

The effect is very difficult to predict, since it will be dependent on case law. We do not know how the tests will be interpreted, and I have not seen any clarity from the Government on how it anticipates that they will be interpreted, so I think that they introduce uncertainty about how the legislation will be implemented.

Liam McArthur

Is there anything that could be done, in the bill or in ministerial statements during the passage of the bill, that might provide additional clarity?

Graeme Garrett

You could simply remove new section 17D and say that every victim of historical abuse will be entitled to a hearing in court. I am not convinced that that would necessarily be in the interests of all victims of abuse, because a case could be so weak that it was almost bound to fail because of lack of evidence. I am not sure that such a provision would be of assistance to every victim.

The Convener

Miss Baxter, did you have any view on that particular point?

Laura Baxter

I think that we said in our submission that it was reasonable to include that section. Not having a legal background, I do not have the full knowledge of what it means, but, to back up what my colleagues here say, I think that if it is clear and concise, leaves no doubt as to what it means, and whatever happens because of it would not be to the detriment of the victim, we would accept it.

The Convener

It was probably good to raise awareness of it as a possible stumbling block, so that it does not come as a shock if it perhaps becomes an impediment later on. Obviously, you want the bill to be as effective as it possibly can be.

That concludes our questioning for the panel. I thank you all for attending, and I thank Mr Whelan and Mr Aitken particularly. I realise what a huge amount of courage it takes to come and talk to a committee. Please be assured that it has been worth while from the committee’s point of view. I hope that you feel that the effort has been worth it too.

David Whelan

I would like to thank the committee for taking forward the bill, for scrutinising it and for allowing us to come to give evidence. I gave the committee some personal documents relating to my court case and other issues. If I have said anything today that you need clarification on, I am more than happy to provide further information in relation to Dr Janet Boakes and other issues that we have raised with the committee.

The Convener

Thank you—that is very helpful. I suspend the meeting now to allow for a change of witnesses.

11:26 Meeting suspended.  

11:32 On resuming—  

The Convener

I welcome the members of our second panel: Alastair Ross, the assistant director and head of public policy at the Association of British Insurers, and Graeme Watson, a member of the sub-group on historical abuse in the Forum of Insurance Lawyers. We will go straight to questions.

We started questions to the previous panel with a general question, so I will ask such a question of our second panel, too. The bill removes, with retrospective effect, the three-year limitation period when a court action is about childhood abuse. Would you like to place on record your views about the proposed change and say what impact you think it will have on organisations that are defending claims and on their insurers?

Graeme Watson (Forum of Insurance Lawyers)

From the outset, we recognise what a sensitive and difficult area this is. In particular, we acknowledge how difficult it is for victims and survivors to come forward in any forum, whether that is coming before the committee this morning, seeking legal advice or going before a court, and we believe that each case must be considered on its merits.

There are two particular aspects—the first is the policy and the second is the practice. We welcome the Government’s policy of widening access to justice for victims and survivors. In responding on behalf of FOIL to the committee’s questions, I hope that I can talk about some of the practical effects of the drafting as it stands and what their impact might be.

In particular, I draw your attention to two aspects of the drafting as it stands. The first concerns how the bill deals with cases of historical abuse that have been concluded. They fall into two categories. The first involves cases that have been dismissed, which means that, procedurally, the case was disposed of, but the right remains and the action can be reraised at any point. The bill would allow the actions to be raised again, as they could be anyway, and it would change the criteria by which the court decided whether the claim ought to succeed.

The second category involves cases in which there has been a final decree absolvitor—that is, a final substantive judgment. Those cases have been determined by way of a final binding decree.

I see that the committee has already written to the Government to ask for its views on pre-1964 cases and to ask why they were not included in the scope of the bill. At the heart of the Government’s response is a concern that, in those cases, the substantive right has been extinguished, which means that there would be a risk of falling foul of the European convention on human rights.

The Convener

We are getting quite far down the line into detail, but my question was simply about your views on the removal of the three-year limitation period.

Graeme Watson

My views are that removing the three-year limitation period and reinstating the cases that have previously been disposed of is problematic. The proposal is to replace the power of discretion that is set out in section 19A of the 1973 act with a test of whether a fair hearing is impossible, and to substitute one form of discretion for another. I therefore have concerns about how much the bill will open the door for claimants and what clarity there is about how those cases will be dealt with. You heard the concerns about certainty, but I do not believe that the bill, as drafted, brings the certainty that survivors and victims are looking for.

The Convener

We can perhaps tease that out a bit later, but the second part of my question concerned the impact that you think that the proposal will have on organisations that are defending claims and on insurers.

Graeme Watson

The cases fall into a number of categories. Some organisations are insured so, ultimately, there will be a financial cost that insurers will bear. Some organisations might have been insured at the time but might now be unable to trace that insurance, or they might have had low limits of indemnity, which means that their insurance would be exhausted after some damages had been paid out in any given year. Other organisations will have had no insurance at all for such claims and will be meeting the cost directly and personally.

The Convener

Does Mr Ross have anything to add?

Alastair Ross (Association of British Insurers)

I echo Graeme Watson’s comment that the issue is incredibly sensitive, especially for victims and survivors, and it is correct that they should be at the heart of the legislation. This is probably the most sensitive type of claim that insurers deal with of all the personal injury claims and so on that they handle. Insurers recognise that and, over time, they have developed specific practices and protocols to recognise the distinctions in this class of cases, so that they can be handled differently. Our members have put a lot of work into that.

In our submission, we expressed our significant concerns about the implications of the proposals in the bill. I concur with the previous panel’s recognition that the system as it stands is not working. The central issue seems to be the application of discretion, which the previous panel set out.

I draw the committee’s attention to the fact that judges in England and Wales seem to be more inclined to use discretion. That relates to different legislation, although it is broadly similar in what it sets out. The nub of the issue is that judges in England and Wales are more inclined to exercise discretion in cases than Scottish judges are. Is this bill the best and most effective way to address that and to meet the needs of victims and survivors? We propose that there are more effective ways to do that—the committee might also have recommendations—whether that is by providing additional guidance to judges, looking at some of the criteria under which discretion can be exercised or bringing forward a different way of resolving claims. In our submission, we mentioned the idea of a pre-action protocol, which is a process that would sit outside the court but still be legally binding. It would have a number of advantages for all parties, not just for victims and survivors.

Rona Mackay mentioned the concept of secondary trauma. If we accept that the primary trauma was the abuse that was experienced, the secondary trauma is coming to terms with that as an adult, discussing it with friends and family, going to a lawyer and discussing the details with them, the lawyer sharing those details with other parties and possibly with the alleged abuser, and the details being read out in court or even having to stand up in court and retell the story of abuse. That is all incredibly significant and it asks a lot of the victims and survivors who take it forward.

Depending on the way in which a pre-action protocol was drafted, it could still achieve a legally binding settlement. It would probably deliver that more quickly than by going through the court system, where cases might be subject to a number of delays for various reasons. Again, depending on the way in which the protocol was drafted, there could be an option for victims, survivors or pursuers to move out of the pre-action protocol process and into court, if that was what they were looking for. Barnardo’s, which is a leader in the field of supporting victims and survivors, has done a lot of interesting work on secondary trauma, which I encourage the committee to look at and explore.

We have significant concerns about the bill and its implications for insurers. The interest of insurers is in the organisations that are insured and the significant financial exposure that they could face if the bill were taken forward as drafted.

The Convener

I suppose that you heard the earlier evidence. It came out loud and clear that survivors think that the bill gives certainty and choice—choice that would not come from having to go through the mechanism of a pre-action protocol. It was clear that, if the time bar were removed, they would have choice.

Graeme Watson

When a claim of any form is intimated, someone writes to the organisation, the person who is bringing the claim and the person who is defending it appoint solicitors—or they are likely to—and correspondence is exchanged between the solicitors. To put this particular area to one side for the moment, in many cases, that results in an agreed form of settlement and the matter is entirely disposed of. A pre-action protocol is a standardised way of doing that. The parties exchange what their positions are and, if it is possible to reach an agreement without the necessity for litigation, they do that.

Victims and survivors might be hopeful that, if the bill goes through, that will be a means by which they are heard in court, but that will not be any more the case than it is for other forms of litigation. In acting as lawyers to insurers, our job is not to defend claims that ought not to be defended. On the contrary, part of our role is to advise insurers when claims ought to be recognised and settled without the need for a court hearing.

11:45  

Liam McArthur

Alastair Ross will have heard the exchange with the previous panel about how, under proposed new section 17D of the 1973 act, there would be discretion for cases not to be heard when a fair hearing could not be guaranteed or when, given the retrospective nature of the application, there could be significant prejudice. Concern was expressed that that discretion might be used in the same way as the courts have until now used their discretion on the time bar, which would in effect lead to the time bar being applied, albeit not as rigorously. Given what Alastair Ross said about the approach of judges north and south of the border, is it reasonable to assume that the approach of judges in Scotland to such discretion might lead to survivors not having an opportunity to have their cases heard?

Alastair Ross

That is an interesting point. The important thing to keep in mind is that we have a balanced and fair process. I appreciate the arguments that have been put forward for changing the limitation period but, if a case is to go to trial, we also need to keep in mind the need to deliver a fair trial and to have equality for all parties that are involved in the process.

Liam McArthur

What about having confidence and certainty in the process? You will have heard the concerns about how the courts’ discretion to set aside the time bar has been exercised in only one case. It is not impossible to imagine that the two circumstances in the bill for not hearing cases could be used in a similar way, so that the time bar was applied almost by the back door, so to speak. Is that a realistic prospect?

Alastair Ross

An important point to bear in mind is that limitation or time bar—the two terms are interchangeable—is a legitimate defence. There might be occasions, as was touched on in the earlier session, when cases go back so far in time that there is no longer an alleged abuser to pursue. There might no longer be evidence, whether that is records or the testimony of other people who were there and might have witnessed abuse, and the organisation that had the duty and the responsibility might no longer exist. Your point raises a lot of questions and issues.

As I said, it is an issue that judges are not applying discretion in the same way north of the border as they are applying it south of the border. An option would be to provide greater advice on how they should act. I have not been able to find a record of the advice that is provided to the courts on the application of limitation and the discretion on that. The Government could have chosen to go down that road and explore that possibility, but I see no indication of that in the bill or in the supporting documents. There are other options and it would be useful for the committee to explore the issue in the round.

Convener, you said that survivors said in the previous session that the bill offers choices to pursuers. I appreciate that. A pre-action protocol could be an additional choice that might be preferable for some groups of victims and survivors. In the time that I have been working on and dealing with this area, I have come to appreciate that it is an incredibly complex field, with an incredibly complex group of victims and survivors who have different interests, priorities and expectations. No one process would meet all those different needs. The previous panel touched on that, when it looked at what people expected to see at the end of the process.

Does the removal of the time bar necessarily mean that a case would proceed? No. Other witnesses have set out how other factors will be taken into account. It is arguable that the removal of the time bar would provide for a day in court, but that might not mean that the case proceeds—that could be for various reasons, including the quality of evidence and the existence of other parties.

It is important to bear in mind the choice of pursuers. Given the likes of the written evidence from the Former Boys and Girls Abused in Quarriers Homes, I suggest that it would be interesting to explore whether those people might be open to a solution or protocol outside the courts. I agree and appreciate the importance of choice for the pursuers, but I return to the point that we have to have a fair and balanced litigation process that observes the needs of all parties.

John Finnie

Good morning, panel. Mr Watson said something very interesting about his role as a lawyer and how he would suggest recommending a settlement. Can he say how often he has done that?

Could Mr Ross, as head of policy, give us statistics on how often that has been the case for perhaps the last 25 years?

Graeme Watson

Not often. I have been acting in abuse cases for 17 years or so; over that time, very few of those have progressed. In recent years, a larger number have been settled but, equally, it is fair to say that a lower volume of cases has been brought forward. If we go back 15 years or so, a high volume of cases was brought forward. As Mr Whelan set out, many cases ceased at the point when legal aid was withdrawn. However, where cases have been pursued on their merits, some have been settled, but the number is low.

John Finnie

Thank you. I would like to talk about time again. Criminal prosecutions are not subject to time bar, and that can lead to the situation where there is a successful criminal prosecution but there is not the facility to follow that up with civil action. That situation is surely not equitable.

Graeme Watson

The criminal position is striking because there is, by definition, an accused who is fit to stand trial and who does stand trial. I agree that the discretion seems to work in an obtuse way if there is sufficient evidence for a criminal trial to proceed but not for a civil trial. That comes back to what criteria we use to determine whether there is sufficient evidence to proceed, or how discretion is exercised.

The bill does not simply cover those situations in which there is a live accused who is available to give evidence and whose evidence can be heard and tested in court against the other available evidence.

John Finnie

Forgive me if we stick with a specific example. We have a historical case that results in a criminal prosecution. We could talk—I do not think that we necessarily should—about the degrees of proof required for criminal versus civil. Surely that is an inequitable situation.

Graeme Watson

The case of an uncle and his niece that Mr Aitken mentioned is a case in point. The discretion was exercised in favour of allowing the case to proceed where it would otherwise have been out of time, precisely because the evidence was available.

I agree with you; I agree that the discretion, or whatever is in place, ought to deal with that situation. However, the bill, as framed, covers the whole spectrum of cases where abuse is alleged, and that will include cases in which there is no criminal prosecution, and even circumstances in which there is a lack of witness or documentary evidence. That is why it is important that there is a means for the court to weigh up whether an action ought to proceed, precisely so that clear circumstances, such as those that you set out, can be dealt with equitably by allowing a case to continue, while cases in which there is a dearth of evidence are not taken to a full hearing.

John Finnie

Surely it is only by testing in court that it can be established whether there is a sufficiency.

Graeme Watson

That is a good point, and that question also arises from the drafting of the bill. The question is whether it is better to test all the evidence and then, at the end, to have the possibility that the court will say, having heard all the evidence, that a fair trial is not possible, or whether to have the opportunity of the court determining at an earlier stage that there is not sufficient evidence for there to be a fair trial and, therefore, not proceed to a full hearing.

There was a recent case in which that precisely was the issue. Having heard a preliminary trial on whether there was sufficient evidence, the judge determined that the equitable discretion should not be exercised in favour of allowing the action to continue but also stated in terms that a fair trial was not possible. In those circumstances, there would have had to be a full trial, which would necessarily have been stressful for all involved, particularly for survivors and victims, and would have had the outcome that a judge says that a fair trial is not possible. I am not sure that that is a step forward.

John Finnie

I take in good faith your comments about your concerns about victims and survivors. However, your obligation is to companies and organisations and your position on all this could be seen as simply about finance.

Graeme Watson

It would be naive to say that insurers have no financial interest in this: of course, they do. The interest is of their insureds—companies and organisations that continue to exist and their continued ability to function. It is to ensure that, while survivors and victims have the opportunity to be heard, likewise those organisations that face allegations have the opportunity and the scope to put forward a reasoned response.

It was very well said by Mr Garrett that, even if the reference to the possibility of a fair hearing taking place was not in the bill, that would be the case anyway because of the European convention on human rights. Limitation has a purpose of itself. It serves use to all those who are involved in knowing the limits of what their involvement in litigation may be. It was described earlier as a barrier. I do not accept that. It is a hurdle, but it is not a barrier. It is an equitable discretion. Accordingly, a risk that arises from this is pushing back the point at which the court decides on similar criteria to a later stage in the proceedings.

Alastair Ross

I concur with what Graeme Watson has said, specifically on insurers and their interests. Insurance is a commercial contract. In this case, it is to indemnify an organisation for legal liabilities that may arise under the terms of the policy. Those can be very specific, or a lot broader.

To be absolutely clear, an abuser retains personal and primary responsibility for their acts. Insurers are providing insurance to organisations to cover certain liabilities that they may be obliged to deliver to third parties. Insurance is about managing risk. You pay a sum in terms of your insurance premium and that manages the risk of a claim. The alternative would be to reserve significant amounts of funds so that, if a case was raised against you—an abuse case, or some other kind of personal injury—you would have the money to defend yourself and to pay for any compensation that was due. Insurance is a device to manage risk that helps organisations to manage liabilities that they might not otherwise be able to meet.

Either a significant amount of money is tied up in an account in case somebody comes after the organisation, or the organisation receives significant litigation and has to meet the liability from current reserves. The existence of the organisation is put in some doubt if it cannot meet the cost.

We are talking in the main about public liability policies, which can cover compensation claims by victims and survivors of child abuse. I will be guided by Graeme Watson on this, but in terms of the extended no-fault vicarious liability principle, even if an organisation is not aware that it employs, or has a volunteer who is, an abuser, and even if it is not aware that that abuse is going on, cover is still provided for the organisation under the terms of the insurance policy.

That is what our interest is. It is about working with our insureds—our customers who have taken out insurance and entered into a contract. In cases that go back a significant number of years, whether that is decades or into the last century or whatever, we are looking at the contract that was entered into by all the parties. At the end of that contract, it was closed. We are now talking about revisiting that several years—in some cases, several decades—after the event.

12:00  

Mary Fee

I want to be clear on something. We have had a fairly lengthy discussion on discretion and I would like your view on whether the guidance that is given to judges is sufficient to allow them to use that discretion properly or whether—as some think—new guidance should be issued to judges and courts.

Graeme Watson

There is no guidance as such. That is the principle difference between the Scottish legislation and the English legislation. In the Government response at the consultation stage, I was interested in the emphasis that the Government placed on how this seems to work in England and Wales but there seem to be greater difficulties in Scotland.

Certainly, one way of proceeding would be to have an equitable discretion with a non-exhaustive list of factors that judges have to take into account. There is nothing like that in Scotland; there is only past case law and the high point of that is a decision of the House of Lords that states that the court has to consider whether there is a real possibility of substantial prejudice.

I suspect that it is not controversial that where there is a real risk of substantial prejudice, a court should be slow in considering that an action should be allowed to continue. However, we are talking about one form of words against another form of words. It might well assist the courts and the judiciary in general if they were to have a list of factors that they were required to take into account in considering how to exercise their discretion.

Again, on the question of whether there can be a fair hearing, it does not provide certainty. It is another form of question for the court on whether an action has a sufficient basis to allow it to proceed.

Alastair Ross

I agree. As I touched on earlier, I have researched this and there does not seem to be any guidance afforded to judges on it. I find that quite surprising, but that seems to be the situation. One option would be to provide more detailed guidance and to include some of the conditions that Graeme Watson has alluded to. I will defer to others on whether that should be the role of Scottish ministers or the Scottish Civil Justice Council—I am not sure who would have the responsibility for that. However, that is one alternative to the proposed actions in the bill.

We have not had discussions with Scottish ministers about this—certainly, I know that the previous panel made a lot of reference to having such discussions—and therefore, having read the bill and the supporting documents, I do not understand why that has not been considered as an option or why Scottish ministers have opted to go straight to the removal of the time bar as their solution to what I think everyone agrees is a problem.

The Convener

It might be because it gives certainty and then sufficiency of evidence can be looked at if the case comes to court or is considered. There is the certainty that it is being considered. Under your proposal, that certainty is not there. Things may be improved, but the certainty is not there.

Alastair Ross

I am sorry—I do not quite follow.

The Convener

The time bar is removed so there is no legal obligation. The court will not have to ensure its discretion so that certainty would not be there, even with the improvements that you are suggesting with the guidance. Is that not the key difference?

Alastair Ross

Yes, I can accept that point. I am sorry—I was confusing that with another point. I beg your pardon.

Stewart Stevenson

This is a question for Alastair Ross. You have a number of issues with the financial memorandum—some of the figures that the Government is using are perhaps not the ones that you would suggest. It would be useful to get those issues on the record and to explore them.

Alastair Ross

Of course. It is important that we all look at the financial memorandum because, by definition, for the reasons that have been set out, we are dealing with a fairly limited set of data.

I had some difficulty following the process by which the Scottish Government had arrived at the figure of 2,200 for the number of cases that it anticipated would come forward. I might have misheard what was said, but I think that a member of the previous panel suggested that only a percentage of those cases would go forward. That is not how I have read and understood the financial memorandum.

Setting that aside, the financial memorandum estimates that 2,200 cases will come forward, Police Scotland says that it is working on 5,000 active cases and a lawyer who was mentioned earlier has 1,000 cases, so it is extremely difficult to establish the quantum. It would be useful to get some independent analysis—that could be provided by actuaries or another independent group. I mention actuaries because they might have access to data that is held by insurers that they could use on an anonymised basis, from which they could extrapolate the range of numbers.

Bearing in mind the restrictions on the available data, 2,200 is a figure that should be tested a wee bit more so that we can understand whether it represents a mid-point, as the financial memorandum says, or whether it is an overestimate or a substantial underestimate. That will help us to understand some of the other material in the financial memorandum, whether on the implications for legal aid or the potential implications for public sector organisations that might be pursued subsequently as a result of the bill being passed as drafted. It would be useful for more work to be done on that.

I know that the Finance and Constitution Committee will consider the financial memorandum specifically and will report to this committee, and it would be useful to find out its views on the matter.

Was that useful? Is there anything that you would like me to expand on?

Stewart Stevenson

I suspect that your answer merely expanded the uncertainty rather than closing it down.

Are you of the view that the 5,000 cases that the police are pursuing are cases that would be time barred? I imagine that the 2,200 cases that the Scottish Government is talking about are ones that have a future, whereas the 5,000 figure is entirely different.

Alastair Ross

I cannot recall off hand what Police Scotland said in its submission about the 5,000 cases; you might have it in front of you. From memory, I think that that figure was the number of active inquiries, which dated back as far as 1964. Therefore, the time bar might apply, but there will be more recent cases that Police Scotland is dealing with in relation to which the time bar would not be an issue.

Stewart Stevenson

You might not have the answer to this, but has the insurance industry taken a position on what the liabilities for the industry might turn out to be?

Alastair Ross

It is incredibly difficult to put a figure on that, because different firms—

Stewart Stevenson

Forgive me. I am simply asking whether you have made a provision. You are representing the industry, and the provision would be in individual insurers. I am simply asking whether a provision has been made; I am not necessarily asking what the quantum might be.

Alastair Ross

At this point, I am not aware of the measures that individual member companies might have taken by way of provision.

Ben Macpherson

Good morning. I want to pick up on something that Graeme Watson made brief reference to in his opening remarks.

As you hinted, the new limitation regime would sit alongside prescription, which is a related area of law. As you are aware, the Scottish Government has decided not to reform the law of prescription because, under the ECHR, it would not be appropriate for it to do so. The effect of that decision is that if the abuse occurred prior to September 1964, it will usually not be possible to raise a court action under the proposed new regime. Was the Scottish Government correct to take that approach to prescription?

Graeme Watson

The Government was correct to take that position, for the reasons that it set out. There is a difference between prescription, which extinguishes a right entirely, and limitation, which concerns the procedural issue of whether someone can exercise or enforce the right.

It is a long time since Parliament took the view that prescription is not appropriate in personal injury actions; the change to the law came into effect in 1984. No doubt it was right and appropriate that actions for personal injury should be subject to limitation rather than to prescription, but the effect of prescription has been that the substantive right was extinguished—it no longer exists—and the Government’s concern is that that would run counter to article 1 of protocol 1 of the European convention on human rights if it were now to resurrect those rights. I would say that the same position arises for cases in which there has already been final judgment: that is a very similar position, with a substantive right having been extinguished rather than a right simply not being exercised.

Ben Macpherson

Does Alastair Ross have any comments on that?

Alastair Ross

There is nothing particular that I would add to what Graeme Watson said. I read with interest the correspondence from the Minister for Community Safety and Legal Affairs in the papers for this meeting, in which she notes that on the one hand the Scottish Government does not, on ECHR grounds, feel able to address the prescription issue, but it does feel able to proceed on removal of the time bar and limitation, although the minister recognises that in relation to things such as resurrected cases that is a highly unusual step. I was struck by the contrast between prescription and the application of the ECHR, and limitation, for which it is felt to be fair, reasonable and legal to proceed on that basis.

Ben Macpherson

Clarity has been provided, in this panel and the one before, that one is an aspect of procedural Scots law and the other is an aspect of substantial Scots law. It is good to have that on the record.

The Convener

Was not the issue at stake to do with time, in that prescription tends to go much further and legal rights would be extinguished, and therefore there is a question whether it would be fair, so much later, to look at possibly reinstating those rights?

Graeme Watson

The question of the extinguishing of rights was certainly at stake. It is undoubtedly the case—I think that Mr Garrett referred to this—that when we get to cases from prior to 1964, the question of sufficiency of evidence is going to be more difficult.

Of course, there is not a light-bulb moment with cases from 1965; there is a spectrum. We could be asking the courts to look at cases that were time barred in 2016, and which related to events in 2013: it would not be terribly difficult for the courts to look back four years rather than three. Equally, however, we could be asking the courts to look at events that took place in 1965. Again, the circumstances of some cases might mean that it is not terribly difficult to piece together what happened, but in other cases that will be difficult. Documentary evidence degrades and is lost over time, witnesses become unavailable—they are dead or untraceable—and so the challenges increase. That is precisely why it is beneficial to have some form of discretion. The bill will allow that, to the extent that there is the question whether a fair hearing can take place, which in turn cuts against the possibility of there being certainty.

The Convener

Is it not really that the further back a case goes the more the terms of article 1 of the ECHR—the right to peaceful enjoyment of possessions—come into play? Was that not more the factor that distinguished prescription from the time-bar limitation?

Graeme Watson

Article 1 is of relevance to cases that have been disposed of by final judgment rather than to pre-1964 cases. It can arise in relation to both, but in different ways. In cases where there has already been a final judgment, the European Court of Human Rights has said that if the judgment is that even if someone is not liable for something that has a proprietary value, interfering with it can be contrary to article 1 of protocol 1 of the ECHR. However, you are right, in that the further back we go in seeking to assess whether someone ought to be liable for events of a long time ago, the greater is the argument that we are, in interfering in that, not exercising proportionality.

12:15  

Liam McArthur

You have talked about the challenges that arise the further back we go, and I think that everybody has accepted that. Similarly, all the evidence suggests that one of the real incongruities with the time-bar limitation in relation to child abuse is how long it takes for that abuse to be, in a sense, revealed by the individual—even to themselves and their immediate families, let alone to the authorities. Therefore, the drive behind lifting the limitation in that respect is borne out by evidence that suggests that it is estimated that around 22 years is the average time for abuse to reveal itself. Do you accept that that absolutely needs to be addressed, because it is not being addressed through the discretion that is available to the courts?

Graeme Watson

Yes—I agree with that entirely. That is where we come back to the fact that we are acting on behalf of organisations that are being held vicariously liable for the acts of volunteers or employees. If events are coming to their attention for the first time 22 or more years later, they might simply have a dearth of material on which to proceed. That does not mean that there should not be an opportunity for the victim-survivor to come forward and try to make their case. However, it does mean that there has to be a balancing act in considering whether justice can be done in the circumstances. That is a reason for having some form of judicial discretion rather than a firm cut-off.

Mairi Evans

I want to ask you a question that I asked the previous panel, about the definitions of “child” and “abuse” in the bill. I understand from your submissions that you are critical of the fact that the definition of “abuse” is not exhaustive. What amendments to it would you like?

Graeme Watson

As far as the definition of “child” is concerned, there are reasonable arguments to be had about whether the age limit should be 16 or 18. Sixteen is the age of majority, but we do not take particular issue with the limit being 18—that is understandable.

There are two issues with the definition of “abuse”. One is that it is currently framed as being non-exhaustive. The second is on what is encompassed within the term “emotional abuse”. When the Scottish Government published its draft bill, the definition of “abuse” included sexual, physical and emotional abuse, “unacceptable practices” and neglect. The consultation referred to “unacceptable practices”. After reflection, the Government took that out. The draft bill included “neglect”, but that has also been taken out. That is recognition that there is a range of activity that is harder to define and in which it will be helpful to have clarity.

On the specific question about changes in drafting, the straightforward amendment that I would like would be the word “includes” being changed to “means”, so that the definition would read:

“‘abuse’ means sexual abuse, physical abuse and emotional abuse”.

“Emotional abuse” itself is a not a well-defined term: it is quite straightforward to go to past case law and see what is meant by “sexual abuse” or “physical abuse”, but it is much less so with “emotional abuse”. You had a flavour of that in the discussion with Mr Whelan and Mr Aitken regarding spiritual abuse and what is encompassed within that. I encourage the committee to consider replacing the word “includes” with the word “means”, but also to consider whether greater clarity can be brought to what is meant by “emotional abuse”.

Alastair Ross

I echo what Graeme Watson said. The ABI supports the definition of “child” that is set out in the bill: we are happy to accept it. Similarly, we propose that “includes” be replaced by “means”, in order to give a tighter definition.

I think that Mr Aitken, who was on the previous panel, spoke about the awareness effect and how that could bring forward a significant number of people. Clarity on what the bill refers to would be really useful. We have already had an interesting conversation about the concept of spiritual abuse, which I had certainly not previously considered in looking at the bill. That was very interesting.

The broader and looser the definition, the more scope there is for cases, so there would be a potential issue about the volume of cases coming forward. I think that Douglas Ross touched on that. That is not to say that the bill should not proceed just because it might create more business for the courts, but it will be necessary to ensure that the volume can be dealt with within the available resources. I am not arguing against the bill proceeding, but if the definition in question is significantly broad, it is fair and reasonable to suggest that it is likely to encourage more cases being brought forward. We would all then need to ask questions about whether the interests of victims and survivors were being met.

As I understand it, the bill as drafted will give certainty that people will have a day in court—I think the convener touched on that earlier—but I do not know that that correlates with giving certainty that cases will come to trial. We could still have issues to do with the availability of defenders and the calibre of evidence, which we have touched on before. I wonder how victims and survivors would feel if they were, because there was a broad definition in the bill, encouraged to bring cases forward by whatever means—whether by representative groups, lawyers or claims management companies.

I will digress slightly. I hope that we do not end up in a similar situation with historical abuse cases as we have with other classes of personal injury. There is the phenomenon of people being cold called—approaches being made to them from out of the blue. The most common such cases involve whiplash claims. People get phone calls—I got one the other night—in which people say, “You have been involved in a car accident in the last three years.” If the person says definitively, “No, I wasn’t,” the person on the phone will say, “No, you were, and we can help you to claim for that.” I sincerely hope that there will not be similar practices with the class of personal injury that we are discussing, but organisations will probably approach people who have been in institutions that we have mentioned earlier and ask them whether they were affected by abuse or witnessed it. It is a matter of how people will feel, maybe decades on, about being asked to give evidence as a pursuer or a witness in something in which they would rather not be involved.

That is a slight digression from the point, but it is really important to get the definition of “abuse” right. Therefore, we support what Graeme Watson said about amending the bill to replace “includes” by “means” to give a greater level of clarity and certainty.

The Convener

By way of reassurance, we have heard how long it can take survivors to come forward, so I do not know that there is really a parallel with whiplash cases. People are quite happy to disclose or think about whiplash cases. Perhaps that was an unfortunate analogy.

Alastair Ross

No—that was my point entirely. I hope that the way in which organisations handle the pursuit of such claims would be entirely different from how they might approach historical abuse cases.

The Convener

When we talked about the volume of cases that would go through the courts and where that would come from, maybe it was not mentioned that, fundamentally, the issue is looked at as an access to justice one. The witnesses seemed to suggest that the proposed legislation would ensure that people who were abused would no longer face a substantial barrier to access to justice and that awareness would be raised that that was the case.

Alastair Ross

I accept that, but I repeat the point that, currently, the system is not functioning as it should. There is consensus between this panel and the previous panel that that is the case and that action needs to be taken. There are differences in views on the action to take to resolve that, but there is definitely an access to justice issue.

During the evidence from the previous panel, insurers were accused of having a vested interest: I would say that we all have vested interests in ensuring that victims and survivors can come forward and avail themselves of access to justice. However, the same access to justice must be provided to the other parties.

The Convener

So what happens in court in that respect is a separate issue from what is covered in the substantive legislation.

Alastair Ross

Yes.

Rona Mackay

In his opening remarks, Mr Watson mentioned his concerns about proposed new section 17C of the 1973 act and his preference for a pre-action protocol. I want to drill down into that a wee bit more and ask what your key concerns are. After all, you will have heard the evidence from survivors who are very much in favour of re-raising time-barred actions.

Graeme Watson

Our principal concern is about dealing with cases that have been concluded with a final judgment—in other words, there has been a determination that the right of action has been concluded. I draw a parallel with pre-1964 cases, in respect of which the Government has recognised that a right of action has been extinguished and, accordingly, is concerned that it would run counter to the ECHR if those cases were to proceed. Cases in which there is final judgment by way of absolvitor fall into the same category.

Rona Mackay

I do not quite understand how they are in the same category. I am having difficulty with that, given that the situation with time-barred cases pre-1964 is different from the prescription issue. Does that not give victims access to justice?

Graeme Watson

It does, and that is in the context of the victim having already brought a case in which there was a final judgment of the court. Weight and importance have to be given to the rule and certainty of law, and part of the right to a fair trial is the right to have the court’s determination enforced. We would rightly be concerned if in another jurisdiction a court had made a determination and the Government intervened to reverse that judgment. I recognise the Government’s concern in that respect with regard to the right being extinguished in the pre-1964 cases, but the same point arises for cases in which there is decree of absolvitor. To make it clear, there are two types of cases: those that are disposed of by dismissal, and in which there is an explicit recognition that the case can be brought again at any point, and those in which there is a final judgment by way of absolvitor, in which the right has been determined.

Alastair Ross

We are talking about significant Scots law principles. I understand that at a future date the committee will hear from the legal fraternity in the form of the Faculty of Advocates and others. I certainly endorse what the faculty has said in its written evidence. We are talking about some substantial changes.

I appreciate that what we are talking about is entirely within the context of historical child abuse, but if we start to change the principles, might the Scottish Government or some other group come forward at some point and say, “The changes that have been made with regard to historical child abuse cases should also apply in other areas”? I appreciate that that is not the core business of, or the main interest in, this particular evidence-taking session, but the committee is dealing with some fairly fundamental principles of Scots law: obviously the committee will consider very carefully the changes that the Government is putting forward.

The Convener

You will also be aware that the circumstances in which the Government is talking about removing the decree of absolvitor are very specific. The measure would apply in cases in which, for the person settling, there was no realistic expectation of the time bar being removed and in which the insurers had put in a condition that, for the settlement to be agreed, a decree of absolvitor would be imposed when it was not necessary, instead of a decree of dismissal, which would allow the case to be raised again. We are probably talking about very limited circumstances, but I think that it would be disingenuous not to recognise that this particular section has been put in to cover what might be very few cases.

Graeme Watson

I do not recall that being the circumstance. I dealt with many of those cases at the time and, on the contrary, my recollection is that we were somewhat surprised that the claimants’ solicitors proposed absolvitor. It was certainly not proposed on the instructions of the insurer in the cases with which I dealt.

12:30  

The Convener

Do you hold that it could have happened?

Graeme Watson

I can speak only for the cases with which I dealt and I think that I dealt with more than any other individual.

Alastair Ross

If I heard you correctly, convener, you suggested that insurers proposed absolvitor.

The Convener

As a condition of settlement.

Alastair Ross

I have no awareness of that so, if there is documentary evidence that we can see, it would be useful to be able to review it and understand the point in more detail.

The Convener

It is certainly my understanding that proposed new section 17C of the act is in the bill to cover that precise set of circumstances, so you might want to go back and look again at that.

Graeme Watson

Yes, I will certainly be happy to do that.

Stewart Stevenson

I will drill down a little bit. In your opening remarks, Mr Watson, you gave us two types of case: those that were dismissed and those that went to absolvitor. However, the absolvitor cases themselves fit into a number of different categories. There are those that went to proof, where the evidential issue was resolved and where a settlement was reached, but there are also absolvitors in which we are a long way short of that. However, there are also people outside that situation.

I will give you an entirely hypothetical situation. There are two boys who are twins. In 1970, going through exactly the same system together, they are abused. One goes to the courts and gets a settlement of absolvitor and a payoff that he accepts as being the best available settlement at that point. The other twin takes no legal action but, under the bill, will have the right to go to the court and, potentially, get a very different outcome financially and perhaps in terms of how much of the evidence is dealt with in the process.

Even if we know of no such circumstances as I described, is the provision not drafted to cover precisely that kind of circumstance? When the twin who took no action gets a result, is it not proper to reopen the case in which someone signed up to a settlement in the circumstances that were then available, which we now accept—as I hear from the current panel of witnesses as from the previous one—is not the proper way to deal with such cases? Is that not the point of principle as to why we set aside the absolvitor in certain circumstances?

Graeme Watson

Yes, and I understand the force of that argument powerfully. It is clearly made. The issue is not the morality of whether the cases should proceed any more than it is in relation to the pre-1964 cases. It cannot be said that there is a moral basis for saying that someone who was abused in August 1964 cannot come forward but someone who was abused in October 1964 can.

Stewart Stevenson

Forgive me. In my example, I deliberately said 1970 to dispose of the pre-1964 issue. I am not making a moral point. I am making a legal point that it is likely that the pursuer, whose circumstances were identical to the other person’s, accepted the legal circumstances in which an absolvitor was granted simply because that was what was then available. Therefore, if the law is changed now to grant the other twin an option to pursue a case, it is proper that that right should be extended to the person who took the absolvitor.

We have dealt with the moral points and this is a purely legal point. Is it a new thing in law? Should it be utterly resisted? If it should, does the whole bill not fall?

Graeme Watson

I will explain why I took it back to 1964 and the question of morality. The example that you gave highlights the challenge precisely because it looks unjust if one individual can proceed in one way and someone else who is in highly similar circumstances cannot. However, phrasing it as you did—as a question of law—is a good way of putting it.

You asked whether the proposal is, in effect, unique, and the answer is that it is. There is no precedent for legislating away final determinations. The issue has come before the legislature on a number of occasions. It has not come before this legislature, but it came before the Westminster Parliament in the lead-up to the 1973 act and again in the lead-up to its amendment in 1984, and concerns were clearly voiced about interfering retrospectively with rights that had already been determined.

The issue here is one of certainty of law, the rule of law, the importance that that has within Scots law as a system anyway, the way in which that is buttressed by the European convention on human rights, and whether looking to reinstate cases that were finally judicially determined runs counter to both Scots law and the convention.

Stewart Stevenson

It is helpful that you put it in those terms as it helps the committee to understand the great care that we need to take in dealing with this. However, it absolutely reinforces my personal commitment to make sure that we deal with it.

The Convener

I entirely understand what you say. This is a huge issue to get right, but we are talking about a specific circumstance where it can be proved that accepting a decree of absolvitor was a condition of settling and that people did that knowing about the time bar. The narrow issue that is being addressed is where it was a condition of settling that a decree of absolvitor be granted where we would normally expect it to be, in the circumstances, a decree of dismissal. In fairness to the Government, I do not think that there is any attempt in the bill to overturn the important principles that you have talked about.

I hope that that is helpful in closing the discussion on that, but can I get your opinion? In circumstances where that can be proved, is what is proposed in the bill the fair, proper and right thing to do?

Graeme Watson

I am hesitating because, again, I am going back to my experience of how these cases were dealt with and I simply do not recall that they were disposed of on that basis.

The Convener

We are talking hypothetically, then, about a situation in which it could be proved that the pursuer, in order to get the settlement, was required by the insurers to accept a decree of absolvitor where normally, in the same circumstances, it would have been a decree of dismissal.

Graeme Watson

There are two circumstances. One is where there was a payment of money in the form of an extra-judicial settlement, which we can see in any form of litigation. It would always be expected that that would be concluded with a decree of absolvitor because that involves both parties accepting that they have determined the dispute between them and it is at an end.

The other circumstance is where one party abandoned the case without seeking settlement. In that circumstance, they would not have received anything in return and those who defended the case would not have been in a position to insist on a decree of absolvitor. The vast bulk of these cases were legally aided and it is not as if the parties defending them were going to get an award of expenses anyway.

The Convener

I understand that they may not have insisted on it as a condition of settlement, but given that, at the time, we were not looking at the proposals in the bill, and that the pursuer may have realised that there was a time bar and there was no prospect of the case being raised again, that may have given the insurance company, if you like, an extra incentive or leverage for the pursuer to accept absolvitor when it should have been dismissal.

Graeme Watson

I do not believe that, in that circumstance, the defender would have had any leverage. However, let me put that to one side and answer the question directly. My concern about this is that it runs counter to the rule of law and the certainty of law, not the specific circumstances. In any hypothetical situation, the same would pertain.

The Convener

That is a helpful distinction.

I think that there is only one more aspect that we have not covered—the double compensation issue. How do you see that? Should the onus be on the defender or the pursuer to establish the settlement?

Graeme Watson

I was interested in what Mr Garrett had to say about that and what was in the submission from the Association of Personal Injury Lawyers. He cited the example of a case that was settled on behalf of a child by a parent. However, by definition, that could not have been time barred. Any form of settlement was therefore not reached on the basis that there was a limitation issue. By definition, the time would not have started running, let alone have run out, until the child was 19 or 21.

I was also struck by Mr Garrett’s concern about the paucity of evidence on the basis of which a settlement was reached. I ask the committee to bear in mind that we are talking about—

The Convener

I am sorry to interrupt, but we are talking about double compensation, where a case has been settled and compensation has been paid.

Graeme Watson

Yes. One of his concerns was that it would be difficult to establish retrospectively on what basis the case was settled—what amount was expenses, what amount was damages and how the decision was reached. I understand his concern about that. However, that only highlights the evidential difficulty that one faces in trying to investigate what happened years ago.

Putting that to one side, I recognise the force of what Mr Garrett says about an alternative means of addressing the issue being to offset whatever had been awarded or agreed in the earlier settlement. Nevertheless, trying to unpick the basis on which that was reached would be a very difficult exercise. I am trying to think of a situation in which an insurer would have said, “We’ll pay your expenses plus a nominal sum for damages.” There would have been little or no incentive for an insurer to do that. I have dealt with approximately 400 to 500 cases, and none has been in that situation.

I agree with Mr Garrett that it is not clear what ill the provision seeks to address, and I agree that there is another way of coming at the matter. However, I encourage the committee to reflect on what he said about evidential difficulties. Those are writ large for the circumstances of abuse itself and are why we have some form of discretion in how these cases proceed.

The Convener

Should the onus be on the defender or the pursuer?

Graeme Watson

It is a matter of fact. I do not have a strong view on where the onus should lie. The pursuer is bringing it forward as an aspect of evidence, so I would expect the onus to be on the pursuer in the ordinary run of things. However, that is secondary to the issue of how the matter is dealt with.

Alastair Ross

It seems to be a very specific point. I was not aware of the concept of double compensation having been raised in any other evidence that the committee has received. As far as I am aware, it is not set out in the bill or the supporting documents.

I am conscious of the fact that Graeme Garrett was talking about a hypothetical situation, whereas Graeme Watson has said that, in 400 or 500 cases that he has dealt with, that has not been the case. It would be useful to get some specific examples of that from Mr Garrett, other colleagues or whoever else. I understand the hypothetical point, but are there any specific examples of its having happened in the past, and does it need to be addressed in the legislation?

I defer to Graeme Watson because of the length of his experience of handling such cases in court. I am not aware of the issue from an insurer’s perspective. I have not heard it discussed in all the time that I have been working on the bill or in preparation for this meeting. There has been no indication that there would be such an approach, in which a token sum—I think that somewhere in the region of £50 was suggested——would be paid. Neither I nor Graeme Watson has come across it at all.

12:45  

The Convener

We have had a helpful discussion in the round and on the latter point specifically. I thank you both for coming. Is there anything that you want to add in closing?

Alastair Ross

If I may, I would like to raise an important point that has not come up in the session so far. The committee has a significant job to do—the implications of the legislation are substantial, and there is an expectation that the committee will consider all the evidence so that it is as well informed as possible before it makes recommendations at stage 1 and the bill goes forward. I am struck by, and concerned about, the fact that the committee has received fewer than half the number of submissions that the Scottish Government received when it ran a consultation on the measure in 2015.

The Convener

Your point being?

Alastair Ross

I am just struck by the contrast between the level of evidence that the committee has received from organisations that have an interest in the bill and the situation with the Scottish child abuse inquiry. At the end of last month, Lady Smith read out a list of literally dozens of organisations that could conceivably be affected by the legislation, given that her inquiry is already investigating allegations of historical child abuse, and yet their opinions on the bill and their voices do not seem to be represented.

The Convener

No doubt organisations will have noted your point. They will have the opportunity to submit evidence.

Alastair Ross

I am putting the point on the record—that is all. I am grateful to you for the opportunity to do so.

The Convener

I can assure you that one of the founding principles of this committee is access to justice for all in the criminal justice system. I hope that, if you take nothing else away, you take that away, having heard the questions and seen the evidence that the committee has received. Thank you for attending.

12:47 Meeting continued in private until 13:02.  

The Convener

Agenda item 4 is our second evidence-taking session on the Limitation (Childhood Abuse) (Scotland) Bill. I refer members to paper 2, which is a note by the clerk, and paper 3, which is a Scottish Parliament information centre paper.

Our first panel of witnesses comprises Laura Dunlop QC, who is the convener of the law reform committee of the Faculty of Advocates; Kim Leslie, who is the convener of the civil justice committee of the Law Society of Scotland; and Bruce Adamson, who is a legal officer with Scottish Human Rights Commission. You are all very welcome. I thank you all for your written submissions, which have been very helpful.

It will be good to get some things on the record, so I will start with a general question. It is stating the obvious to say that the bill will remove the three-year limitation period for a court action about childhood abuse. Do you support that change? What are your reasons for your views?

Kim Leslie (Law Society of Scotland)

I am grateful for the opportunity to give evidence this morning. I am a representative of the Law Society of Scotland, so I must underline at the outset that the Law Society of Scotland is a broad church. It represents practitioners who, in turn, represent claimants who have been victims of childhood abuse. It also represents practitioners who represent the insurance industry and local authorities, so I must stress that although in its response the Law Society welcomes the bill, that welcome is from claimants’ perspective: there is no consensus.

Today I will speak principally from the position of claimants, from which view I can say that we broadly welcome the bill—although we have some comments to make, which will, no doubt, be fleshed out today. The reason why we have welcomed the bill from claimants’ perspective is that the existing legislation is simply not giving access to justice to this category of claimants.

The Convener

We appreciate that claimants have a view, but other people will be affected by the bill, so it is the committee’s duty to scrutinise all aspects in order to ensure that we get the legislation right.

Would anyone like to add to that?

Laura Dunlop QC (Faculty of Advocates)

I will speak on behalf of the Faculty of Advocates. Before I do, I put on the record that I have another hat, which I am not wearing today: I hold office as procurator to the General Assembly of the Church of Scotland. I thought that it would be just as well to put on the record that I have never given any advice to the church in connection to any claims in relation to historical abuse.

The Convener

That is duly noted.

Laura Dunlop

Thank you. In the capacity in which I am here today, I have remarks to make that are similar to what Kim Leslie said. The faculty is also a broad church; it is a smaller church than the Law Society, but we have about 450 practising members, and views on the matter are probably spread across the range of opinions.

10:15  

The mechanics of the faculty in preparing its initial response to the consultation were that the reparation sub-committee of its law reform committee prepared the written response, and a line was taken by that sub-committee. Advocates who serve on the reparation sub-committee operate across the spectrum, and so represent both insurers and pursuers in actions such as those to which the bill applies. The sub-committee took a particular line that was not revised, but was submitted because it had been prepared by a group of practitioners in the area. The position that the faculty takes now is as set out in its most recent written response. That position is that we have obviously moved on. Everybody has moved on. The bill is here and the faculty’s position is that it will offer whatever comments it can in an attempt to make the bill as good as it can be.

Although I am conscious that the faculty has in it, as the Law Society of Scotland has, practitioners who operate across a spectrum, I say from a law reform point of view that the bill is welcome. Because the bill is quite short and clarificatory, the position is—perhaps subject to one or two points of detail—clearer than it has been until now.

Bruce Adamson (Scottish Human Rights Commission)

The Scottish Human Rights Commission is a very small church of just four members, but it has a very broad remit covering all human rights for everyone in Scotland.

The survivors who gave evidence last week set out the arguments more powerfully and eloquently than I will be able to do today. We all share a common purpose, which is that the most important function of the state is to keep children safe from abuse. When we fail to do that, we need to ensure that practical, effective and accessible remedies are available. We need to adapt for the special vulnerabilities of certain categories of people to ensure that they have access to justice.

The bill is not the whole solution for survivors, but it is an important part of it. For a large number of survivors, an action for personal injury damages will not be the best route for justice. However, for some, the current law represents a real barrier to their accessing justice. That has been consistently cited as one of the serious concerns, right from the beginning of the work on the issue. David Whelan and Harry Aitken, who gave evidence to the committee last week, have been at the forefront of campaigning and supporting other survivors to campaign, and that issue constantly comes up.

The commission worked with survivors, the Scottish Government and care providers to develop the 2013 “Action Plan on Justice for Victims of Historic Abuse of Children in Care”. That set out two broad outcomes: one was acknowledgment and the other was accountability. The Apologies (Scotland) Act 2016, which the committee considered in the previous session of Parliament—I recognise the convener’s leadership in that—was very important as regards putting in place a facility for meaningful apology without incurring civil liability. When the commission gave evidence to the previous Justice Committee on that point, we said that it was very important, but that it was not all of the solution.

The same goes for the bill: it adds something. As far as moving accountability forward is concerned, a national inquiry is starting its work, and we have further work being done on redress, which will provide another aspect of access to justice for survivors. However, the bill will address a particular barrier. Removal of that barrier in pursuit of the very legitimate aim that I think everyone agrees with, will affect the rights of others.

At the previous committee meeting, there was some useful discussion—as I am sure there will be today—of how we can ensure that interference with rights, particularly with the right to peaceful enjoyment of possessions under article 1 of protocol 1 of the European convention on human rights, occurs only to a level that is necessary and proportionate to the legitimate aim that is being pursued, and that a fair hearing is available to both sides in a civil case.

The commission fully supports the general principles of the bill. The last thing that I will say in opening is that the bill needs to be seen as part of the wider work that is being done. Survivors need to be supported in understanding the broad range of options that are opening up to them and in making the choice about whether the approach will be right for them. In many cases, it might not be.

The Convener

That is useful. We will touch on that, because there has been quite a lot of dialogue, concern and coverage about the numbers that may present. You make a good point that it is not necessarily a solution for everyone and that different things will give different people closure.

John Finnie (Highlands and Islands) (Green)

Opponents of the bill, such as the Association of British Insurers, have suggested, as an alternative approach, that guidance—whether statutory or in some other form—be provided to judges on how they could exercise their discretion under the Prescription and Limitation (Scotland) Act 1973. Could you comment on that proposal?

Kim Leslie

As part of the consultation process, consideration was given to effectively adding in some statutory factors, but it was considered that that would simply not go far enough and that the burden would still remain with the claimant—the survivor, in this case—to explain why they had failed to raise the matter, and too much focus would be put on the delay in raising proceedings. That would naturally be an appropriate alternative, but it was decided that, on balance, it was unlikely to go far enough to remove that barrier for that category of claimant.

Bruce Adamson

The commission agrees with that. We are looking for a remedy that is effective, accessible and practical, and we would have concerns that keeping the onus on the survivor to explain why the delay took place is unduly restrictive. One of the things that came out in the consultation was the feeling from survivors that they are in some way being blamed for not being able to bring their case forward, so the commission strongly feels that, in terms of providing access to justice, the right thing to do is to create a particular category of survivors—those who were abused as children—who are exempt from having to face that limitation barrier.

Laura Dunlop

If you are talking about guidance in a non-statutory form, there is an element of contradiction of terms, in that judges are not given guidance as to how to exercise statutory discretion. I would not favour that approach, because it would go down a wholly different route. If you are talking about a list of factors that have to be taken into account—Kim Leslie mentioned that—my view is that that would always be a more complicated exercise by its very nature, because it raises a whole new batch of questions. Is the list comprehensive, or is there to be some sort of catch-all—such as “any other relevant factor”—to cater for the multiple different circumstances of the people affected? What weight is to be given to each factor, or are they all of the same weight? If you took that approach, you would perpetuate greater uncertainty.

Douglas Ross (Highlands and Islands) (Con)

My question is not about guidance as a possible alternative. Rather, I want to look at how we got to this situation. Why do you believe that judges are not using the discretion that they have? As Kim Leslie said, existing legislation is not giving people access to justice, although there is an opportunity for judges to use their discretion at the moment. Why are they not using it?

Kim Leslie

That is a very good point to raise at this juncture. The current legislation says:

“Where a person would be entitled, but for any of the provisions of section 17 of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.”

That entitlement exists at present, but evidence suggests that, despite efforts that have been made, people in this category of claimant have not been able to access justice. You asked for a reason. It may just be the natural conservatism of the Scottish judiciary not to allow such cases to proceed after what is often a significant length of time. That is certainly an argument that would be advanced at a preliminary stage.

What does not square with me is that there is no such time limit for a criminal prosecution. The situation is either that we cannot prosecute after a lengthy passage of time, or that there is no reason why we should not be able to bring a civil suit for the category of individual concerned. One can speculate, but the provision is there at present and we can confidently say that there has simply not been expansive use of it to allow the category of claimant concerned to proceed.

Laura Dunlop

I agree with what Kim Leslie has said and would add only two points. First, one could perfectly reasonably hold the opinion that the discretion has been very sparingly exercised in the class of case concerned—there is no question about that. In fact, I found only one case where the discretion had been used, and it did not involve an organisation or an institution. Secondly, the only material distinction between civil and criminal in this regard is that most civil claims are against an organisation or institution rather than an individual. Arguably, it is more difficult for an organisation or an institution to answer a civil claim where, by definition, it does not have the sort of knowledge of what it did or did not do that an individual who is being proceeded against will have.

Bruce Adamson

I agree with all of that. We are not speculating as to the reasons why individual judges took the decisions that they took. One of the reasons why the bill is before Parliament is because the legislature needs to give clear direction on where the balance should be struck.

Douglas Ross

Can that not be made clear through a clear instruction in relation to discretion?

Bruce Adamson

The discretion is limited—it has been interpreted as quite a high test. There is an opportunity before the Parliament at the moment to give the courts a clear indication that this is a category of case that should go forward. I am sure that we will discuss the exception that might be built into that. However, reflecting on what is perhaps the conservatism of the Scottish judiciary, to which other witnesses have referred, I think that not widening the exception might also be, in part, a deference to Parliament, as there is an option for Parliament to implement change, as is clear from the bill that is before the committee, and to set out that this is a category that should go forward.

Douglas Ross

With your permission, convener, can I jump ahead to an issue that I think we will discuss later on? There is provision in the bill for a case not proceeding in certain circumstances. Do the panellists think that some of the conservatism, to which two panel members have now referred, in response to using—

The Convener

With respect, I had you down to ask a supplementary question. There will be an opportunity later to look further at the issue that you have just raised.

Douglas Ross

Sorry, convener, but you made the point in the pre-meeting that we would not stick rigidly to the numbered questions. If we are going to do that—

The Convener

Yes, but another member is waiting to ask a supplementary question on the point that you have raised.

Liam McArthur

Kim Leslie referred to the inherent conservatism of the judiciary. It was put to us by a panellist at last week’s meeting that there would be a risk from there being two circumstances in which a case could be dismissed under the bill’s provisions, which could lead to the same interpretation, and therefore to the time bar, in effect, being applied, albeit through a different means. I think that the Faculty of Advocates referred to that in its written submission. I am interested to know what greater certainty there will be for those proceeding with a case that they will have access to justice under the bill and will not find that the courts interpret new section 17D in the same way as they have interpreted the discretion that they have at the moment.

Kim Leslie

It is valid to raise that risk. However, I highlight that there will be a reversal of the burden of proof. At present, the burden lies with the individual bringing the action. Under the bill, that burden will be reversed to lie with the defender to establish that they would not have a fair hearing or would be substantially prejudiced by the retrospective application of the bill’s provisions.

10:30  

Liam McArthur

Given what Laura Dunlop said about the difference between criminal and civil in relation to a defender who is an individual as opposed to an organisation, is it conceivable that, because of either the prejudice element or the retrospective nature of the bill, the courts will continue to interpret either or both of those two areas of discretion in the same way as they have exercised the discretion that they have at the moment to apply a time bar?

Kim Leslie

There is undoubtedly a risk, but the burden reversal will assist in terms of the expectation that a claimant will be able to bring suit. It is then for the defender to do the heavy lifting in persuading the court that it simply cannot allow the case to proceed.

One of the issues that has been raised in the explanatory note is that passage of time need not and ought not be an automatic bar to proceedings being allowed to continue. It is a balance, and I think that there would have to be something on defenders’ convention rights—my fellow witnesses might have something to say about that.

If I may, at this juncture I will highlight something for clarification. If we are looking at previously litigated childhood abuse actions—again, this is an area where there is mention of substantial prejudice—we have to make it clear that there might be a category of case that has settled without ever being litigated. In my respectful opinion, that type of action is not mentioned in the bill.

Liam McArthur

We will probably come to that in a minute.

The Convener

We are straying quite far into the area that I have just stopped Douglas Ross going into. Since we have started, we might as well continue. If Douglas Ross wants to come in later, he can.

Liam McArthur

In their written evidence, the Law Society and the Faculty of Advocates express support for proposed new section 17D of the 1973 act, but the Scottish Human Rights Commission took a slightly different view. Is that because the fear is that the bill will be interpreted in a way that could lead to similar barriers to access to justice being put in place?

Bruce Adamson

The short answer is yes. The longer answer is that we would like to see some more clarity because, given their experience to date, survivors are certainly concerned that switching the onus around might still lead to the same barrier being put in place. It also focuses attention on the reasons for the delay in taking the case and, even though the onus will be switched around and it will be for the defender to bring that forward, we are concerned that there might be an additional barrier. The purpose of the legislation is to open up access to justice to a particular class of person so, if another procedural barrier was put in place, we would need to make sure that it did not have unintended consequences. As Kim Leslie has said, however, we also need to be aware of defenders’ rights by ensuring that they get a fair hearing. “Substantial prejudice” might need further clarification in terms of the factors that will be taken into account.

Liam McArthur

Is that feasible? The implication appears to be that future case law will set out the parameters of discretion, but could the bill do more to give greater clarity and certainty about how it might be applied?

Bruce Adamson

There certainly needs to be more clarity, particularly around substantial prejudice. We generally agree with the fair hearing point; that is already an obligation on the court and we could foresee instances where the pursuer might not get a fair hearing if they went forward with the case.

There is certainly a need for more clarity but, before we get to that stage, the case needs to be made that the provision is necessary. The argument is that it goes some way towards protecting defenders’ rights, particularly around all of the things that we are aware of in relation to the decay of evidence. It would allow a procedural mechanism to stop cases going forward, given the cost to the system and the stresses that are put on everyone of going through a hearing where the pursuer has no chance of success.

We would like to see a clearer explanation of the necessity of including that provision, in order to address survivors’ concerns that it might be another way in which they would be restricted from being able to take their case forward and having it heard.

Laura Dunlop

I note, as Kim Leslie did, that the reversing of the onus is a significant factor, and I would expect it to make a difference. The defender will have to demonstrate substantial prejudice, and I would be very surprised if general assertions were enough. The defender will have to put forward something specific—some reason or reasons why substantial prejudice is being generated—and that seems to me to be a move away from the tenor of the case law to date, which has very much put the pursuer on the spot by asking why they did not raise proceedings earlier.

The spotlight will move on to the defender; there is no reference to the need for an adequate explanation from the pursuer. Both that change and the reversal of the onus are almost bound to have an effect.

My final point is that the system—the common-law or judicial system—does from time to time, particularly in the area of personal injury, undertake a reboot. It is obvious from the context of the passing of this legislation that a reboot is what is intended. I would be surprised if, in five or 10 years’ time, it is business as usual.

Liam McArthur

In summary, you do not believe that additional clarification is required beyond what will happen through the rebooting of the system and the case law that will follow.

Laura Dunlop

I suppose that we should never say never. If somebody comes up with a neat additional piece of clarification, by all means include it, but such clarification would have to select specific factors that are never to be taken into account, or which have always to be taken into account—something like that. There is a certain benefit in simplicity—I would probably be an agnostic until I had seen what was being proposed as an additional provision.

The Convener

Now that we have touched on that subject, does Douglas Ross have anything further to ask?

Douglas Ross

My points have been covered.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Good morning, panel. I refer members to my voluntary entry in the register of members’ interests as a non-practising member of the Law Society of Scotland.

If the bill is passed, the new limitation regime would sit alongside prescription, the related area of law, which—as I am sure you are aware—the Scottish Government has decided not to reform, because it believes that it is unable to do so without breaching the European convention on human rights. The effect of that decision is that if the abuse occurred prior to September 1964 it will not usually be possible to raise a court action under the new regime. What are the panel’s thoughts on whether the Scottish Government’s approach is appropriate?

Kim Leslie

I imagine that there will be a certain category of individual who will argue against that, but the balance has to be struck somewhere and the Law Society feels that the Scottish Government has struck the right balance. In any event, cases that predated September 1964 would, or could, fall within the exceptions discussed in relation to fair hearing and, potentially, substantial prejudice.

Survivors gave powerful evidence to the committee last week, and there will never be a perfect, neat solution that will please everybody. However, if a line has to be drawn, we are supportive of where it has been drawn.

Laura Dunlop

I agree. I can see a potential challenge if the law of prescription were to be amended to seek to resurrect claims that have been extinguished.

Bruce Adamson

It is important to note that the duty on the state to provide an effective remedy, including reparation, is not extinguished by prescription. We need to do other things, particularly for the survivors who fall into the category of people with pre-1964 cases. As was touched on in last week’s evidence, they will generally be older survivors, who are in most need of access to justice and who have been waiting the longest for it.

The challenge is that, when the law was amended back in 1984, the United Kingdom Parliament took the decision not to reinstate the rights of those whose cases were previously prescribed. To go back on that now would be incredibly problematic in terms of article 1 of protocol 1 of the ECHR and the proportionality that it provides.

It would be an incredibly challenging route to reopen. To add that change into the bill would take us down a path that might frustrate its purpose. That is not to say that the rights of those survivors who were abused before 1964 do not need to be taken seriously and addressed, but there are other ways that we should look to do that.

Equally, although the bill is focused on children who were abused in that period, that should not take away from the right to justice of those who were not children when they were abused or the other categories of people who deserve access to justice. However, for the purposes of the bill and its particular remit, the balance is about right.

Ben Macpherson

Thank you for that useful comment and analysis.

Mairi Evans (Angus North and Mearns) (SNP)

The bill includes definitions of the terms “child” and “abuse”. The definition of “child” has generally been accepted and deemed to be okay, so I will focus on the term “abuse”. When we took evidence last week, it was suggested that “abuse” should include spiritual abuse. What is your opinion on that? Should there be a definitive, exhaustive list in the bill to describe what abuse is, or do you agree with the broader definition that is given?

Kim Leslie

If you spoke to a practitioner who represented the claimant, they would call for a definition that says “abuse includes”. However, a practitioner who represented the defender would call for a definition that says “abuse comprises” or “abuse is”. I am afraid that you will not be able to get consensus on the definition.

I would be happy to be educated on the meaning of “spiritual abuse”; it seems highly likely that types of abuse will co-occur. I would have to see the definition—if spiritual abuse can be defined clearly—before I could comment fully. I simply put it to the committee that such abuse might be properly included in the term “emotional abuse”.

Laura Dunlop

I cannot really add to that—I agree with Kim Leslie. So much of this deceptively short bill is about striking balances. There is even a balance in the selection of the word “includes”. It is open to the courts to develop the concept of abuse—in particular, emotional abuse—to include some of the types of harm that were described to the committee last week.

Bruce Adamson

We agree that there is room to improve the definition.

I will comment briefly on the age categorisation. As Mairi Evans said, there is general agreement that 18 is the correct age, but I reiterate that that does not mean that those who suffered abuse over the age of 18 do not need to have more work done on their rights to redress and to access to remedy. However, because of the special category of being a child—and the international standard that sets the threshold at 18—we think that the bill is correct in that regard.

10:45  

On the definition, the one thing that I would add to what has been said is the commission’s view of the fact that the bill does not include neglect. The bill focuses on a categorisation of things that occurred to someone, including

“sexual abuse, physical abuse and emotional abuse”,

which will need to be considered and expanded on, and which involve a number of human rights concerns. The European Court of Human Rights has found that neglect can meet the standard in article 3 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and article 19 of the United Nations Convention on the Rights of the Child clearly sets neglect alongside the things that are listed in the bill as something that needs to be protected against and for which a remedy should be provided.

In our written submission, we cited the World Health Organization definition, which also puts neglect alongside the categories that are included in the bill. We also cited Sir Nigel Rodley—a great hero of mine who sadly died just a few weeks ago—who was the UN special rapporteur on torture; he said that neglect could certainly be cruel and inhuman treatment under the UN standards, particularly in relation to younger children.

The commission therefore has concerns about the absence of neglect from the list, which should be as broad as possible. Bearing in mind that the provision will be the test for whether a category of people can get past the procedural bar, those people will still need an actionable case and will have to go through the difficult evidential process if they are actually to win their case. When we define the category of people who will get past the procedural bar, we think that neglect could be usefully included.

Mairi Evans

I was going to ask about neglect, and I would like to hear other witnesses’ opinions on the matter. As the bill stands, with neglect not included, will neglect not be considered a form of abuse? Is there case law in that regard, or are there other examples that people can think of?

Kim Leslie

As you know, the Law Society of Scotland, on behalf of the claimant practitioners, wants neglect to be included in the bill. I cannot say definitively that there would not be a category of abuse that was neglect but that would not be covered by the term “emotional abuse”. That perhaps justifies the word “includes” in the bill to provide for discretion, so that when something is presented that is clearly abuse, it can be included.

The Convener

Would the definition of neglect be strong enough? Would there be concerns that its inclusion might mean that the bill would capture cases that might be regarded as—what can I say? Let me give a frivolous example. Someone might say, “Everyone else’s child has designer trainers and my child doesn’t. Am I a bad parent because of that? Am I neglecting my child?”

Bruce Adamson

I appreciate that that was an intention to trivialise, convener. There is a very good understanding of what “neglect” means in international human rights law—the term has been well defined. In addition, the European Court case law maps out the level of neglect that is required to meet the minimum standard of severity under article 3 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. We are not talking about trivial matters.

For the purposes of the bill, and bearing in mind that we are talking about allowing a category of survivors or pursuers to get past the procedural barrier, the type of trivial case that you are talking about would not get anywhere in terms of personal injury action, and I cannot foresee a situation in which someone would see any utility in taking a case forward on such a basis—I do not think that that has been tried before.

We are concerned that any limitation on the definition of “abuse” might exclude people. As others have said, neglect could perhaps be covered by the expansion of the definition of “emotional abuse”. However, the international standards very clearly list those as separate categories, and we think that there is a great deal of international evidence that would make not including neglect in the bill when it clearly could be included seem a little strange. There does not seem to be a real risk of trivial cases going forward, given that, even for very strong cases, people would not undertake the process lightly. The process is very challenging, and it is able to deliver only monetary compensation for the abuse. I cannot see a situation in which the floodgates would be opened to trivial cases by including neglect in the bill.

The Convener

That is interesting—it is good to tease that out.

Ben Macpherson

Laura Dunlop said that the notion of emotional abuse would be developed through the courts and the casework system, particularly in reference to international law, human rights law or, indeed, Scots law. Last week, we heard concerns from a panel about the inclusion of the term “emotional abuse” in the bill. For clarity or expansion, will you give your thoughts on the inclusion of “emotional abuse” and on whether that will help to make the definition of “abuse” effective or create confusion or dubiety?

Laura Dunlop

From listening in particular to the discussion that we have just heard about whether to include neglect in the bill, I see the matter as primarily a drafting one. We know where we are trying to get to, and I suspect that you want to avoid overdefinition. I would be dismayed if a case that involved neglecting to provide food to a child was not characterised as physical abuse or if failing to offer love and affection to a child was not characterised as emotional abuse.

As members have probably gathered from my earlier answer, I tend to favour simplicity. Currently, there is a matching set of three concepts. If you want to add to that to try to capture sins of omission as well as sins of commission, I foresee some drafting problems. I would be interested to hear the views of those who drafted the bill and their thinking on whether the list is robust enough. I suppose that an alternative would be to go with that and, if it produced results in the courts in which the terms seemed to not apply to cases in which there was consensus that they should apply, amendment would be possible.

Ben Macpherson

Thank you—that is very helpful.

The Convener

I want to press you a little more on spiritual abuse, which has sometimes been called religious abuse. I think that it was said last week that that covers the indoctrination—almost brainwashing—of a child by people in a particular position of power. The effect of that kind of abuse seems to be recognised in some quarters as much greater. Someone said that it is almost a fundamental messing with the soul. Not everyone will recognise that concept, but some people will. Will you give your views on that?

Bruce Adamson

I am very aware of the answer that Harry Aitken gave when the committee asked whether spiritual abuse would be covered by the term “emotional abuse”. I respect his view that there is a difference, but I am not really in a position to say that there is. I think that the treatment of emotional abuse by the courts has included the type of abuse that Harry Aitken talked about.

We should do anything that will ensure clarity for survivors; that goes back to the point that we discussed. The drafting is important not only to provide certainty for the courts, but for survivors who wish to take action, as they need to be very clear about what is included. However, I am not overly familiar with spiritual abuse as a distinct category that needs to be listed.

Laura Dunlop

I will mention something that struck me when I was preparing for coming here today, and I am interested to hear what the other panellists think about it. Arguably, the term that is missing from the bill is “psychological abuse”. I am not well enough qualified to develop that point, but it struck me that there may be a difference between emotional abuse and psychological abuse.

The Convener

That would seem to expand the definition a little bit and cover, to an extent, what has been discussed. What does Kim Leslie think?

Kim Leslie

I would need to have time to digest it. It may be that this is a drafting issue and that further consultation is required. Certainly, one turns to causation and the question of what injury has been caused by the abuse. When asked what injury has been caused, one would naturally say, “Psychological harm”. If the term “psychological abuse” could be expanded on, if more time could be spent on drafting and if further consultation could take place, to see where the delineation between “emotional” and “psychological” lies, I would welcome that.

The Convener

Would that be Bruce Adamson’s position too?

Bruce Adamson

Yes, it would—the more clarity we can give, the better. Earlier, I cited article 19 of the UN Convention on the Rights of the Child, which uses the phrase:

“protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment”.

We can phrase that in different ways, but we need to ensure that there is clarity of understanding for survivors in particular. We are talking about a category of people who will not have to go through the limitation process, but they would still need an actionable claim and the evidence to support that. The definition allows people to get over a procedural hurdle; it does not change the nature of the law under which they are seeking a remedy.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I want to look at the retrospection that comes with the insertion of proposed new section 17C of the 1973 act. It is an area that we always need to tackle with great care. I want to make sure that we have a shared understanding of what section 17C means, so I ask for short answers, please, before I ask about a matter of substance.

I am looking at what excludes cases that have been previously disposed of by the court. I am not sure that the cases need to have been litigated; section 17C says “disposed of”. The first barrier is subsection (5), which I understand to mean that if any of the money that the pursuer received was other than for their direct expenses, that case cannot be reopened. Is that layman’s understanding of what the drafters sought to put in the bill correct?

Laura Dunlop

Yes.

Stewart Stevenson

Thank you—that is what I want. Drafting is a particular art, and it can make it difficult for us laypeople sometimes.

Moving on to section 17C(4)(b)(iii)—moving from the bottom upwards—we see that a case will be excluded if the sum of money that was paid to the pursuer exceeded

“the pursuer’s expenses in connection with bringing and settling the initial action.”

What does “the pursuer’s expenses” mean in that instance? Is that a legally prescribed thing or is it something that could be open to legal debate, with regard to what the expenses are or were at the time? At the time, it may not have mattered to the extent that it might now matter.

Kim Leslie

For clarification, previously disposed of rights of action would include cases that never saw a court door.

Stewart Stevenson

That is my understanding; I would be happy to hear that it is yours, as well.

Kim Leslie

It should as a point of principle. There may, of course, be cases that are settled—disposed of—pre-litigation without an action being raised.

Stewart Stevenson

My understanding is that, in policy terms, that is the intention.

Kim Leslie

That is the principle.

Stewart Stevenson

Our duty is to make sure that the words deliver that.

11:00  

Kim Leslie

As a lawyer who uses that parlance, I understand expenses to be my fees and any outlays that are incurred in the course of the case.

Stewart Stevenson

As a hypothetical example, if the pursuer was resident in Australia and had to travel on several occasions to Scotland to pursue the previous case, would those be legitimate expenses? In other words, are the pursuer’s expenses included?

Kim Leslie

They can be. It may be a matter for the auditor.

Stewart Stevenson

The bottom line is that section 17C(4)(b)(iii) does not exclude that example.

Kim Leslie

Yes.

Stewart Stevenson

If the records are no longer available for a case that might be as far back as 1965, for the sake of argument, where does how the bill is drafted leave us?

Kim Leslie

With very great difficulty in advising a client on their prospects for success.

Stewart Stevenson

My question meant where the bill leaves us purely in relation to the settlement. In other words, we can establish the fact of a settlement, because the bank may be able to provide bank records showing transfer of funds. However, we might not have the evidence of the detail of the settlement that would enable us to satisfy the requirement that the money be paid only to cover expenses. Where does the way in which the bill is drafted leave us? That may be only an opinion.

Kim Leslie

I think that it would lie with the defender—they would be the party who would seek to establish that a relevant settlement was made such that the claimant would be barred from raising fresh proceedings. That might be at a preliminary stage—a bit like a debate. A person may raise an action and the client may not be clear on whether he or she has had financial benefit.

I had understood that the principle that the section is seeking to establish is that those who have been financially compensated in any way—the compensation may have been £1—will be barred. I ask the committee whether offsetting could be an alternative solution. The principle behind the section is clearly that those claimants whose claims have been compromised because of the existing legislation—those who have tried and failed—are in a worse position than those who have never tried at all. I find it illogical that a person who may have had no wherewithal at the time and to whom a solicitor may have given £50, saying, “That is for yourself; I have taken an abatement on my expenses,” may then be prevented from reraising an action at this time in Scotland.

Whichever party we represent, we can be certain that we want the act to be clear once it is brought into force. That current section in its drafting could and ought to be looked at carefully, if the principle is that, for those people who have compromised their previous claims because of limitation, there may well be an alternative, which would be offsetting. If, for example, a person has received £50 and their claim is worth £10,000, and evidence can be adduced, that amount could be offset; I do not believe that they should be prevented from reraising.

Stewart Stevenson

You are, of course, making a policy point, and I am perfectly content to accept that we will need to pursue that with the policy makers rather than with you.

I want to pursue a final small legal point to make sure that I understand the meaning of section 17C(4)(b)(ii), which provides that the pursuer entered into the settlement

“under the reasonable belief that the initial action was likely to be disposed of by the court by reason of section 17”.

Do you think that, with the passage of time, there is any sensible way in which the pursuer could demonstrate that they had a reasonable belief in 1965 that the action was likely to be disposed of under section 17? In legal terms, how would they demonstrate to the court that they had that reasonable belief, which is a necessary condition for the use of new section 17C?

Laura Dunlop

It is a bit of a statement of the obvious, but section 17 did not arrive on the scene until 1973.

Stewart Stevenson

Well, let us make 1974 the year in my example.

Laura Dunlop

I think that you make a valid point, because we would have to read that reference as meaning section 17 or its predecessor sections. I cannot see any alternative to the pursuer having to be in a position to give evidence on that matter.

Stewart Stevenson

So, to meet the test that would enable them to invoke the section at all, the pursuer would need to demonstrate that, at some point 40 years previously, they had a reasonable belief that the action would be disposed of under section 17, and to have alternatively come to a settlement without the court coming to a view.

Laura Dunlop

I suppose that they would have to be able to say something along the lines of, “I settled my case because I thought that it was too late and I was going to lose,” or, “I thought that I was going to lose because I was too late.” They would have to be able to make a statement about missing the deadline that related to their basic understanding of lateness.

Stewart Stevenson

I am sure that, in today’s circumstances, the pursuer’s lawyers would proffer correct advice on that matter.

I think that I have probably covered all the issues that I wanted to cover.

John Finnie

Although there are some lawyers in our midst, we are laypeople who hope to ensure that any law that is made is good law.

I want to ask a question in the context of some of the issues that Stewart Stevenson has raised. It is about standards of acceptable practice in relation to what could or could not be done to a child. I am thinking about chastisement. Would an individual be able to make a retrospective claim on the basis of something that is now unacceptable but which was acceptable at the time? I am thinking of corporal punishment, for instance, on which we still have a way to go with our present legislation.

The Convener

Who would like to tackle that one?

Laura Dunlop

It is often remarked that the European convention on human rights is a living instrument. In relation to things such as slopping out, it has been possible to say that society has moved on and that conditions that might have been tolerable or acceptable decades ago no longer are.

Again, I am stating the obvious, but your question concerns an extra step, because the right to damages, if it exists, would be for an injury that was suffered in the past at a time when, according to the standards of that time, what was being done was not wrong. I anticipate that there will be debates about that. Bruce Adamson has a far better command of what Strasbourg has said than I do, so he might have some specific examples of how Strasbourg has approached that problem.

Bruce Adamson

The question is well raised. It is necessary to look at the behaviour at the time against the standards of the time but, in looking at what category of person would be covered by the bill, we would need to look at the definitions that are included in it.

The procedural element of the time bar is the retrospective bit, so there will be a retrospective change relating to the ability to get past the time bar. However, the case itself would need to be judged on the law as it was when the abuse ceased. The court would consider the procedural barrier according to what the law is now.

In terms of the Strasbourg jurisprudence on how our understanding of human rights principles develops over time, your example of protection from assault for children is a good one; there has been a clear and progressive development of our understanding of what is appropriate. However, for the cases that we are talking about here, the ones that would lead to damages for personal injury would generally relate to standards that have not changed, particularly the abuse that has always been covered, in particular under article 3 of the ECHR.

What has changed in relation to article 3—protection against torture or inhuman and degrading treatment—is our understanding of the minimum level of severity that is required to trigger it, not the core concept that there is an absolute prohibition on those things. What has changed in the Strasbourg jurisprudence over the course of the possible cases that will be considered under the bill is that minimum level of severity. In article 3 terms—in terms of personal injury and whether someone is able to show that there is a case and show the damage—we are generally talking about cases that would probably always have been covered.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning. I will move on to the estimated number of cases. The financial memorandum to the bill suggests that, initially, there will be 2,200 childhood abuse cases as a result of the bill. Police Scotland refers to a possible figure of 5,000, dating back to 1964. Can you comment on what you think is realistic and on the difference between the two figures? What impact will the number of cases have on our court system?

Kim Leslie

It is very difficult to predict how many cases will be taken forward. It is important to state that the bill will not be a salve for every claimant; it will remove one hurdle, but any victim would have to overcome a number of other hurdles in order to have a successful claim.

Rona Mackay

Sorry—could you expand on that?

Kim Leslie

Of course. In effect, if limitation is removed, that does not mean an automatic right to compensation if someone falls within that definition. The burden of proof will remain with the survivor, so evidence will have to be established. There is also the issue of recoverability of assets. If no institution was involved, is the perpetrator—he or she—a man of straw? There are other factors that perhaps were not considered when the modelling was done.

I think that it would be imprudent to even try to predict the likely number of cases at this stage. I can say that not all the cases that come forward will necessarily end up in court. There may be an opportunity for pre-litigation settlement. The bill takes away a procedural hurdle that would almost inevitably be run by the defender, which is, “You’re out of time—we’re going to try to block you.” That court time will no longer need to be taken. However, the number of cases is very difficult to predict.

11:15  

Bruce Adamson

I whole-heartedly agree with that. Although we certainly appreciate the committee’s obligation to consider the financial implications of this legal change and the need for the budget to be provided accordingly for legal aid and the court service, in human rights terms, that does not factor in the decision making that is involved in providing access to justice for survivors who are entitled to justice.

I very much echo what Kim Leslie has said, in that bringing a court claim is not going to be the best approach for a great number of survivors. Even taking the upper limits of the numbers that are being used, that approach is going to be appropriate for only a percentage of those people. It is important that support and advice are given to survivors to ensure that they do not see it as being the best option for all of them and that they are made aware of the other opportunities to seek justice, including possibilities for other redress.

The Scottish Human Rights Commission certainly would not expect to see this as opening the floodgates but, even if it did, we would still need to consider how to ensure that access to justice for survivors is provided. That would be the key point.

Rona Mackay

I am getting the sense that we do not know at the moment, and that it is hard to say.

Bruce Adamson

Yes. Another thing that came out strongly through the interaction process and the incredible work that very brave and courageous survivors have done is that there has been underreporting, and that anything that we can do to empower survivors who have not yet been identified to come forward and seek justice, help and support is a good thing. We should not be afraid of the numbers, or of the numbers going up. It is a good thing that more people are engaged in this process. However, support needs to be provided for people to see what the best route forward is.

Bringing a court claim is a very specific and limited approach, in that it is seeking financial redress through quite a challenging process. Removing the time limitation barrier does not change the substantive law in terms of what you have to prove.

Rona Mackay

Thank you. That is helpful.

Douglas Ross

Mr Adamson, you have rightly suggested that people will need support through this process. Where will that support come from? A lot of people will just look at the headline, see that the limitation has been removed and therefore believe that they have a right to bring a claim. How do we deal with the people who do not get where they want to get to? A lot of the people to whom they will turn for support will understandably try, as far as possible, to encourage them to go down the claims route, because they will not have had the opportunity to do so previously. Is enough support in place for the people who might ultimately be disappointed at the end of the process?

Bruce Adamson

I might let Kim Leslie comment on the specific point about the motivations of lawyers and whether they will always give good advice. I am not entirely convinced that spurious cases would necessarily come forward, but that might be a matter for the Law Society.

There is the survivor support fund, which some of the survivors who gave evidence last week talked about, and a number of agencies support survivors to understand the different options that are available to them. That is absolutely key. We have to ensure that the legal profession is given information about the alternatives and about the fact that there are other ways forward and litigating might not be the best option. I hope that lawyers would pass on that good advice, but they might need additional support to be aware of the wider options in the action plan.

What the commission would like to see, and has been in discussion with Government about, is more support for survivors—those who are identified and those who are not yet identified—so that they understand the totality of the process, including all the different options under the action plan, and are supported to make their decision. At the moment there is a gap in understanding about, for example, using the apology law, accessing the public inquiry and accessing the redress system in other ways. I understand that that is being consulted on, which I hope eventuates in survivors understanding what their options are.

More work needs to be done on ensuring that support is in place, and it needs to be done now. You are entirely right that the publicity that will surround the legislation when it is passed might lead to survivors having raised expectations. Although the SHRC strongly supports the bill and knows that it would help some survivors, it will not be the right answer for a great majority of survivors. As the committee is aware, the process of taking a civil action for personal injury is onerous and the evidential burden on these historical cases will be incredibly challenging. For a great many survivors, the bill might not be the right way forward. If they are after an apology, or if they can get the support that they need from the survivor support fund, or if redress is available in another way, they will probably not choose to use the legislation. However, we need to make sure that they have the support to make an informed decision.

Kim Leslie

I echo that. Support will be necessary, partly to manage expectations. That is important. I would hate for somebody to come to my office, jubilant with expectation, only for me to dash them with the cold light of the burden still resting with them. The reality is that although some individuals will have been able to get past that and will meet us fully prepared with detailed notes, the majority will not.

When someone meets a lawyer, it can be quite intimidating to come into a formal situation to tell their story. It cannot be stressed enough how important it is that the process is carried out by practitioners who understand their obligations and the forum in which the person might have to advance any claim, as well as their options in relation to anonymity and media reporting restrictions.

We will still have to tell the survivor that they will have to give us the building blocks, that they will have to be organised and turn up to meetings, and that they will have to come to me with witnesses’ details, such as telephone numbers and addresses, and the chronological order in which things happened. For some survivors, that—just that—might prove to be problematic. That is where some support might be necessary so that the survivors can access the justice that we are hoping that the removal of this particular hurdle will advance.

Laura Dunlop

Any lawyer who has practised in reparation for any length of time can think of examples of people whose experience of getting damages for some injury that they have suffered has not been successful. Unfortunately, that happens across all reparation law. Sometimes practitioners end up thinking that the process has done the person more harm than good. I agree with what Bruce Adamson said about litigation not being the right solution for everybody.

There are really two discrete areas where support is necessary. One is in making the initial selection about which form of remedy from what I hope is a menu is suited to the particular individual. If the survivor chooses litigation, the second area is making sure that there is support for them as they undergo that experience.

Mary Fee (West Scotland) (Lab)

In its written submission, the Convention of Scottish Local Authorities suggested that there could be benefits to hearing childhood abuse cases in a specialist hub of the personal injury court, which was established in Edinburgh. In recent years, there has been a drive across the judiciary to specialise. Do the witnesses share COSLA’s view and, if they do, what benefits would they see coming from a specialist court that dealt only with childhood abuse cases?

Kim Leslie

Specialisation is apparent in the legal profession and it is developing in the judiciary. I would have to have more information to be able to comment more fully in response to the question. Of course, a specialist court would have to be properly resourced. However, there might at present be a need for not a specialist forum but a specialist adjudicator who could assist. There clearly has to be great sensitivity around any litigation involving childhood abuse.

Laura Dunlop

I think that there are benefits from specialisation. My view is that we need more than just one judge or sheriff dealing with the cases involved. It would be good to have a critical mass of three or more, depending on the volume of cases, so that there would be a pool of people who dealt regularly with a particular type of case and could build up familiarity with the terminology and the landscape. That would undoubtedly bring benefits. Judicial figures working in the area regularly would be able to think of improvements to processes and procedures that we hope would benefit all concerned.

Bruce Adamson

I absolutely agree with that. I began my career in a specialist family court in New Zealand, and such specialism certainly has benefits in terms of building expertise. If we do not have specialisms, we hope that all members of the judiciary would pick up the required abilities. MSPs are generalists who build up specialist expertise over time from sitting on committees, and the judiciary develops similarly in its context.

Stepping slightly aside from the bill, one of the key points in the action plan on justice for survivors of historical abuse is that survivors must be central to the design and implementation of systems around the issue. We have had comment, particularly in relation to the inquiry, that perhaps more could be done to support survivor involvement in how the system runs. The same can be said in relation to civil litigation, because there would be a benefit in ensuring that the experience of survivors informs the way in which the process works.

Mary Fee

Do you think that it would increase survivors’ confidence in the court system if they could see a specialist hub that dealt only with childhood abuse cases? Would that not give people more confidence that the system would deal with them sensitively and carefully? Perhaps it would not make it more likely that they would go to court, but would it make them feel better about the court process?

Bruce Adamson

We have seen in other parts of the action plan the strong desire for survivors to be part of designing the specialisation, because that will build confidence; without that involvement in the system, their confidence in it could be quickly destroyed. There are challenges because of the specific nature of personal injury law. We would have to explore a few steps in order to pursue the idea of having a specialist hub. In terms of human rights and ensuring that there is a right to an effective and accessible remedy, one of the key principles is that those who are affected need to be involved in the design of the system and building an understanding of it, otherwise confidence in the system will quickly be undermined.

Mary Fee

Kim Leslie mentioned resourcing. Is resourcing, or the lack of it, the only drawback that you see for the idea of having specialist hubs?

Kim Leslie

As I said, I would have to have more clarity as to what a specialist court would comprise before I could properly commit to an answer on resourcing. What I can say is that anything that promotes confidence in the process and elicits feedback from the judiciary on how procedure could be changed to ensure that unnecessary barriers are removed can only be a good thing. However, as with anything, it comes down to the resources that are made available. It is a matter for those making the policy whether it is better to have a separate specialist forum rather than the general forums that we have at present.

11:30  

Mary Fee

Okay. Do other panel members have any thoughts on potential drawbacks?

Bruce Adamson

For defenders, I cannot see that a specialist court would raise additional human rights issues in terms of a fair hearing. I do not see that a specialist hub would in any way prejudice the rights of defenders. To be clear, I do not think that there is an issue in relation to a fair hearing.

Laura Dunlop

I would not necessarily categorise this as a drawback, but one phenomenon that we sometimes get in courts where a judge does a lot of a particular kind of work is the emergence of an idée fixe, as in “This is how it is done”. That is why I was trying to make the point about not having just one individual. It can be good to have a fresh person come in, who might spot an area where the person who has been doing the work all the time has become a little rigid.

Mary Fee

Okay. Thank you.

The Convener

That concludes our line of questioning. I thank witnesses for what has been very worthwhile evidence in helping us to look at some of the more challenging parts of the bill. I suspend the meeting to allow a change of panels.

11:31 Meeting suspended.  

 

 

 

11:38 On resuming—  

The Convener

I now welcome our second panel of witnesses: Lauren Bruce is policy manager with COSLA; Lesley Boal QPM is detective chief superintendent for public protection in the specialist crime division of Police Scotland; Alistair Gaw is acting executive director for communities and families for the City of Edinburgh Council, representing Social Work Scotland; and—last but not least—Vladimir Valiente is principal solicitor for Midlothian Council, representing the Society of Local Authority Lawyers and Administrators in Scotland.

The committee is very grateful to everyone for their written submissions. I understand that although SOLAR has not provided a separate written submission, it endorses the submission that has been provided by COSLA. Is that right?

Vladimir Valiente (Society of Local Authority Lawyers and Administrators in Scotland)

That is correct.

The Convener

We will start with some general opening questions. What impact do you think the bill will have on victims of childhood abuse? Do you think that additional steps should be taken to safeguard the health and wellbeing of victims who are affected by the legislation?

Detective Chief Superintendent Lesley Boal QPM (Police Scotland)

Police Scotland supports the broad policy intention of the Limitation (Childhood Abuse) (Scotland) Bill. Abuse, including sexual exploitation and serious physical or emotional abuse, and neglect are breaches of human rights. Anyone who has been subjected to such abuse or neglect has human rights in terms of access to justice and to effective remedy. Having worked in public protection and child protection for a number of years, I am—like my colleagues in Police Scotland, local authorities, health services and a range of support and advocacy services—acutely aware of the horrific child abuse and neglect that have taken place in the past and which, sadly, still take place in Scotland today.

Survivors of childhood abuse absolutely deserve access to a range of justice and reparation measures. Each survivor has, or should have, the ability to choose which element or elements they wish to access or progress, and the ability to seek compensation must be one of those elements. We have heard, last week and today, clear indications that many survivors of non-recent abuse in Scotland have not been given that choice, either because of a lack of legal aid or because of the discretionary powers in section 19A of the 1973 act not being applied. It is disappointing to hear that, in other parts of the United Kingdom, there has been greater exercise of similar discretion in relation to cases of non-recent child abuse.

I have a concern about the potential financial and resource impacts of the proposal on certain organisations. The committee heard last week that public liability insurance is not compulsory. Many organisations have been uninsured, self-insured or unable to trace insurance that no longer exists, and my main concern is for the many third sector organisations that operate in a way that is diametrically opposed to how they operated 15, 20 or 30 years ago, and which may be required to fund compensation claims from their own reserves. At this moment in time, many third sector organisations carry out an enormous range of activities to improve the wellbeing of children and children’s lives, often complementary to and in partnership with the public sector. It seems illogical that the vital support and therapeutic services that are provided by third sector organisations to children who have recently been abused or neglected, or who are at risk of abuse and neglect now, might somehow be adversely affected because of abuse that happened many years ago. That is my own concern, but Police Scotland supports the broad principles of the bill.

Lauren Bruce (Convention of Scottish Local Authorities)

Thank you for the invitation to give evidence today. Removal of barriers to justice for survivors of historical abuse is something that our members consider to be a positive move, and COSLA strongly supports the intent of the legislation. Although it is impossible to quantify the potential volume of claims, the overall impact of legislation on local authorities is likely to be extensive, complex and not limited to successful claims. There is likely to be a higher percentage of claims against local authorities because of the plethora of children’s services that they have provided over the past 50 years, and the impact is also likely to include support services that are either offered directly by local authorities or are commissioned through third sector organisations such as Rape Crisis Scotland and other abuse organisations. As claims come forward, victims will need to be supported and that support is often offered by local authorities or the services that they commission.

11:45  

The method of implementation will have a significant impact on achieving the aims of the legislation, as we heard earlier. It will also have an impact on responding organisations and the processes and procedures that they need to develop to be able to respond. I am sure that we will discuss that more fully later. We encourage the committee to think about access to justice more broadly than just through the courts, and to consider other options that could be developed to support victims and witnesses while having a more proportionate impact on organisations.

Alistair Gaw (Social Work Scotland)

I thank the committee for the opportunity to give evidence. Social Work Scotland supports the comments that you have already heard from Lesley Boal and Lauren Bruce. The specific nature of child abuse is in itself a reason for the legislation to be introduced. The support for potential victims that will be required will be both substantial and individually tailored. For example, some victims will require a great deal of help not just as they go through the process of reliving events from their past but as they manage their lives in the future, because of the damage that has been caused by those past events. Equally, victims who face great challenges in their lives might need help to manage any compensation that is awarded to them.

There is no doubt that access to justice is overdue. As someone who is responsible for a range of services and is constantly trying to prioritise, my caveat will build on Lesley Boal and Lauren Bruce’s comments: there needs to be some sense of what the outcome might be in terms of demand on resources.

I have been looking in recent days at the Jersey experience, in preparation for this morning. The isle of Jersey chose to go down a route that did not involve the courts, but was an efficient and effective way to provide compensation. I am sure that we will come on to that at some point in our discussion. To scale up what happened in Jersey to the Scottish scene using an average cost per victim of about £40,000, if the number of victims in Scotland was about 5,000, that would amount to about £200 million. Even at its lowest level, the potential scale is highly significant. We have to take into account the potential impact on the voluntary organisations that are currently providing the services that we need, and on local authority funds, particularly in relation to issues of insurance. My colleague Vlad Valiente will discuss that further.

Wearing my Social Work Scotland hat, I say that it is essential that we right some of those historical wrongs and so we strongly support the measure. However, serious consideration needs to be given to the best way of implementing support, including the potential impact on essential services that we run now and will have to run in the future.

The Convener

You mentioned how things were handled in Jersey, which did not involve the courts but did involve solicitors. There is quite a difference between that approach and the one in the bill. Are they really comparable?

Alistair Gaw

The approach that was taken in Jersey could be taken in Scotland to complement what is in the bill—it is not a case of either/or. We might want to have that discussion.

In essence, the approach in Jersey had the default position that, if somebody was not satisfied with the outcome of the process, they could then go to court. I am no expert on the issue but, off the top of my head, I think that about 80 to 90 per cent of the victims in Jersey accepted the findings of the tribunal and the offer that was made. It is an efficient approach that has satisfied the vast majority of people who were affected and, as I understand it, the victims groups are generally in favour of the approach. That might be a proportionate approach that gives people recompense and recognition but which does not necessarily involve the stress and the potentially much higher costs of civil court action.

The Convener

Would an element of formal recognition be lacking in that approach? With a court hearing, the issue is out there and it is acknowledged, which I am sure is a huge point for people who have been abused.

Alistair Gaw

I am sure that there would be varied views on that. Ultimately, it is for victims to determine that. It would be important to get their views and really test how satisfactory a resolution that might be for victims. On the plus side, the approach taken in Jersey is quick and effective and provides recompense in a much less contested environment. I am sure that some victims want to be in an adversarial court situation and have their day in court, but my impression is that that is not the majority of them.

Lauren Bruce

Again, we will probably go into this in more detail later but, in listening to some of the evidence from victims last week, it came across strongly that, in some cases, the victim wants an apology, an acknowledgement of what happened and an assurance that it will not happen again. We have to question whether the civil court process can deliver that. That process is designed to look at issues of civil law and not the issues on the fringes of that to do with apology and an assurance that something will not happen again. That is a strong thing that a model that is not the court system could offer to people. The court system just cannot deliver that, because of its design.

The Convener

Vladimir Valiente is next.

Vladimir Valiente

First, convener, if it is easier, I am usually referred to as Vlad. Obviously, we have the full names today.

I thank the committee for inviting the Society of Local Authority Lawyers and Administrators to provide evidence to the committee. SOLAR absolutely agrees that justice needs to be done for the victims and survivors—there is no question about that. Our question is more about what is the best method to achieve that outcome, whether that is compensation or something else. We are thinking outside the box and about the Jersey model, which my colleagues mentioned. This might seem strange coming from a litigation lawyer, but the reason for that is that the adversarial system might not be the best place. I watched the previous committee meeting, in which survivors commented on the tactics and antics of the lawyers who are involved—the discrediting of victims and the undermining of their testimonies. Earlier, Bruce Adamson mentioned the “challenging” process of court.

The adversarial system, which is about gathering the evidence and challenging it, brings difficulties. I am not certain that an adversarial system is the best outcome for all concerned, although it might well be for some. As was alluded to earlier, the Jersey system would allow for a process to be gone through in relation to compensation. If the survivor or victim was unhappy with the outcome, they could still have their day in court. To me, that provides more choice, and at the previous meeting you heard that victims want more choice, because one size does not fit all. That, alongside the Apologies (Scotland) Act 2016 and so on, would provide a more comprehensive system. From a local authority perspective, it would also provide better outcomes in terms of the public purse, because it would potentially lower some of the legal costs.

I am not an expert on the Jersey system, but I understand that it allowed for legal expenses for the formulation of applications. If I am not misquoting, about £1 million was spent on legal expenses alone to help the survivors and victims to put their cases forward. As I said, with such an approach, the survivors would have the final choice as to where the process ended up. If it ended up in court, that would be their choice. That would certainly assist with some of the concerns that have been raised about the adversarial process, which is exactly what we will have if we do not put in place anything outside of that.

The Convener

So it is another approach to add to the choices. You are not advocating that it should be the first step, before we look at the provisions of the bill.

Vladimir Valiente

It will be a policy decision as to whether people must go via that route first, as in the Jersey scheme, or whether it is simply another choice that will assist survivors and victims. SOLAR has not taken a position on that, so I cannot comment because I have not canvassed members on the matter. However, I suggest that it is well worth exploring the Jersey experience in relation to the final outcome and what the survivors and victims want from the various processes.

John Finnie

Good morning, panel, and thank you for your evidence. My questions are for Lauren Bruce and Lesley Boal. You will understand that we are obliged to consider the impact of the bill, and one aspect is the number of likely cases. The financial memorandum suggests a figure of 2,200, and I know that both COSLA and Police Scotland mention the figures in their written evidence. Will you comment on that, please? The figures have been disputed by the Association of British Insurers—indeed, it disputed them last week. How accurate is the figure in the financial memorandum?

Detective Chief Superintendent Boal

Police Scotland mentioned figures in its written response, and I think that that has been misinterpreted by some. If it has been confusing, I apologise to the committee.

We have said that we think that the 2,200 figure might be conservative. The memorandum figure was estimated using as a proxy data on the number of police reports of sexual crimes against children between 1971 and 2015. I am conscious of the time, but I have a bit of information that I want to share with the committee. Unfortunately, I am not going to come up with an answer on what we think the number is, but it is important that we give you a bit of information that we recently pulled together at Police Scotland.

Outwith Police Scotland, the crime survey for England and Wales for 2015 and 2016 asked adult respondents aged between 16 and 59 whether they had experienced a range of abuse when they were a child. I do not think that such questions are asked in any of the Scottish surveys. The survey showed that 9 per cent of adults had experienced psychological abuse—that was the term used, as opposed to “emotional abuse”—that 7 per cent had experienced physical abuse and that 7 per cent had experienced sexual abuse. In addition, in the information that was collected from adults who had survived sexual assaults by rape or penetration during childhood, three out of four persons reported that they had not told anybody about that fact or reported it to the police. That might interest the committee.

12:00  

You will be aware that Police Scotland has seen a rise in reports of non-recent rape over the past number of years, since Police Scotland was created, and I will describe a bit of work that we have been doing in the past year or so. In 2014, operation hydrant was established in the UK as a result of the Savile issues. It is a co-ordinating hub. All forces across the UK committed to report to operation hydrant when we were investigating non-recent sexual abuse involving persons of public prominence or where the abuse was in an institution—it is quite a narrow category—so that if the individual was under investigation by another police force in the UK, we could join the dots. That is operation hydrant. It is referred to in the written response but maybe it was not clear what that was about.

We have been doing that and, since the Scottish Government published its intentions for the national child abuse inquiry and then, in May 2015, announced the terms of reference, Police Scotland has tried to be prepared for that. We have had dedicated resources for the past year and we anticipate that it will take another year or so to search for and locate what we call public protection files—they used to be called family protection files—mainly in relation to sexual crime and child protection, and identify the files that fit the terms of reference for the Scottish child abuse inquiry. We are doing that in anticipation that we will be asked for information, so that we can discharge the chief constable’s statutory function.

We have focused on the legacy Strathclyde area and we recently finished looking at that area. It has taken us a year to search for, locate and find our old family protection files. We have found 115,000 files. They are not all about child protection; they include sexual crime. However, out of the files that were investigated from the public protection, family protection, and woman and child-type units that there have been through the years, the vast majority of the files that we have found just go back to 2000. Very few pre-date 2000, which probably fits in with our retention and policy rules.

Although the majority of the files are from reports made in 2000 and later, the earliest abuse that we found is from 1936, so somebody had reported historical abuse. We are under a bit of pressure with the child abuse inquiry, so we have identified the files that fall within the terms of reference for that inquiry, namely abuse in care. We have also catalogued the files that, if there were investigations now, would fall within operation hydrant. There is a bit of crossover in terms of care in institutions, but we have catalogued the persons of public prominence cases and, because we have been doing some deconfliction work in Police Scotland for a wee while, we have also catalogued clerical abuse.

Although that seems quite broad, it takes into account only a small proportion of abuse, because we are quite well aware that, in terms of reports, the vast majority of abuse is in the household and by people who have some other form of relationship with the victim.

Having done the Strathclyde area, which is probably half of Scotland in terms of population and so on, we have catalogued just under 2,300 files for those specific types of terms of reference. That said, we have 4,400 victims. For example, when we counted up the victims in three different files, all relating to the same institution, there were 57 individuals reporting child abuse in a care setting.

That is where we are at the moment with that bit of work. The reference to possibly finding about 5,000 files when we do that narrow bit of work is the number that we anticipate finding once we get round the other seven legacy forces in Police Scotland. That is not the number of victims; it is the number of files. There might be one person or there might be a number of people reporting in a file, depending on the type of investigation that was done. Is that helpful?

John Finnie

It is very comprehensive. I have a series of questions, but I do not think that I will get away with asking them all, in the time. I will ask one, though, about retention policy. Is that being looked at, and does technology help with that and make it easier? Some of us know from constituency work about the challenges of historical things, particularly with the previous local authorities.

Detective Chief Superintendent Boal

I suppose that once we do that search, locate and catalogue exercise, and review the situation across Scotland, we will be in a better position to understand retention in relation to what we have—for example, what the retention policies were previously and what they are now. We are clearly not now disposing of anything that might fall within the terms of reference of the Scottish child abuse inquiry and the England and Wales inquiry. However, looking back, and with paper records, it is difficult. There is an image of us being like Ikea or something—we can just type in a name and all of a sudden we will be able to find something. Unfortunately, that is not the reality.

John Finnie

Is the informed guesstimate not too far off the 2,200 figure? I appreciate that it could change.

Detective Chief Superintendent Boal

To be honest, on the 2,200 figure, what we have at the moment is very narrow. If the bill is not just going to take into account children in a care or institutional setting but is broader, we might be talking about a larger number. We have 4,400 victims from those terms of reference from the Strathclyde area. We could say that we should double that for the whole of Scotland, but we know that that is a small proportion of the children who have been abused and neglected in Scotland across the years.

I suppose that that is probably as far as we can go. In the recent football abuse investigations, which are on-going, there were 140 referrals to Police Scotland, 36 investigations raised, and well over 100 victims. Even in relation to that small period of time, the vast majority have never been reported to the police before. It is really difficult to estimate the potential number of victims. I absolutely get that there should be a range of options for survivors of child abuse and that litigation might not be one, or might be only for a small proportion of cases, but it is difficult to say what the cost will be for the purposes of the financial memorandum.

John Finnie

Thank you. We appreciate the complexity.

Lauren Bruce

In our submission we said that, based on discussions with Police Scotland, the estimate was conservative, particularly given the large scale of what the bill covers. We are keen to emphasise that, regardless of the number of claims that go forward, the impact on local authorities will be bigger because of the number of information requests—subject data access requests and freedom of information requests that come in to try to establish who the defender is in each situation.

It could well be the case, for example, that a child had swimming lessons at the weekend in a pool housed within a high school, but the person providing the swimming lesson was an outside contractor—there was no relationship with the local authority. However, if the childhood memory is that they went to the high school for the swimming lessons, the information request that is submitted to try to figure out who is the defender in the action is likely to come to the local authority.

Overall, it is very difficult to predict how many cases will go forward, but it is also very difficult to predict what the impact will be. What we know of ombudsman inquiries might give a slight insight into that. It tends to be that only 25 per cent of ombudsman inquiries make it to the final complaint stage. There will be huge variance in that, but if we take that figure and apply it to the number of cases that go forward, the impact in terms of information and figuring out who the defender in a situation is could be massive for local authorities.

Mary Fee

The previous question and answers lead nicely to my question on capacity and impact. COSLA has highlighted that the administrative burdens could be quite large if the bill were to be passed. Let us set aside the financial impact, particularly on local authorities, given that we all accept that the financial burden for local authorities is potentially larger than for any other organisations.

Lesley Boal and Lauren Bruce have spoken in detail about the difficulties of investigating and the length of time that it could take to investigate given how far back some of the claims could go. What impact will the bill have on the capacity of the police, local authorities or social work to fulfil other obligations? Is there the capacity to deal with the issues without there being an impact on other services?

Alistair Gaw

A lot of adult survivors are still receiving services, either directly from local authorities, through voluntary organisations that we fund or who have a particular commission or through the national health service, which also provides services to some people. Therefore, many people may well be in the system already. For some people, the process of getting some recompense through a tribunal or judicial process might provide a degree of closure or support that will allow them to be in a better place by the end. It is difficult to quantify.

In my experience over the years, in different areas of the country where we have had reasons to look at historic files and cases, I have found—as have the police—that getting hold of information is extremely difficult, particularly when one goes back to the time before there were electronic records. Much of the work is done on hands and knees—it is literally done by people in warehouses digging out boxes of files and looking through papers for what they are trying to find.

The big unknown is the volume of requests that will come in, not so much under legal or judicial processes—however those might unfold—but from individuals making FOI requests or subject access requests under the Data Protection Act 1998 for information that will then have to be processed, redacted and shared by the local authority, which is very time consuming. The administrative burden as a result of that will depend entirely on the volume of requests, which is difficult to estimate at the moment.

The other area in which there is likely to be a big impact is in having to support former staff, current staff and others who are affected through hearings processes. The impact of that will depend on the number of people involved.

The repercussions are much greater than just the cost of any recompense that might be the ultimate outcome. To go back briefly to the Jersey model, there around half of the costs of the entire process were paid out in recompense; the other half related to administration and management of the process.

Mary Fee

Thank you, that is very helpful.

Lauren Bruce

I agree with what Alistair Gaw has said. However, I would add that the impact is unlikely to be identical across the country. There have been several iterations of local government across the period covered by the bill, which means that there will be differences in the files that have been kept, for example in moves between buildings. More than one method will have to be developed to deal with that—different methods depending on the files that exist, where they are kept and the resourcing capacity within the local authority at the time. Even the response to the bill will not be one size fits all.

12:15  

Vladimir Valiente

I echo what has been said already about subject access requests and FOI requests. There will be a significant impact on local authorities.

I can probably provide a bit more input on the legal process. There will be an impact on legal services across all local authorities from assisting our client departments through the subject access request process and from mapping out potential claims that might be forthcoming as well as assessing any claims that might come in.

Once we go through that assessment process, we enter into the realms of litigation. Local authorities are a broad church—that term was used earlier, I think—and not all of them will be geared up with legal teams to enable them to cope with the level of claims that might be forthcoming. Some of those claims will be processed through to the court system and some will be settled outwith court, but either way a significant amount of work—dealing with those claims from the beginning through to litigation—will fall on the legal departments in the 32 local authorities.

I suspect that a lot of local authorities will have to make provision either to hire external services, if they do not already have such teams, or to recruit more people to deal with the volume of cases that might come in. I acknowledge that the volume of claims is unknown at the moment; we touched on that earlier. However, at the previous meeting of the Justice Committee, it was mentioned that one firm in particular has about 1,000 claims on the books at present. That gives us an indication of what might be forthcoming.

Mary Fee

Does Lesley Boal have anything to add?

Detective Chief Superintendent Boal

I suppose my response is exactly the same as the comments from Lauren Bruce and Vladimir Valiente. A request will be made to Police Scotland whenever an individual who is considering raising an action has made any form of report to Police Scotland in any way, whether that has resulted in a charge, a report to the procurator fiscal, a conviction or otherwise. Although I am hopeful that, in the next year, we will be in a far better position in respect of search and recovery, because we have done quite a lot of work in anticipation of the public inquiry, there are still resource implications in locating, removing, redacting and reviewing information, and for legal services. Without a doubt, there will be resource implications for the information management department in Police Scotland.

The Convener

I want you to make your position clear. We do not know what the exact impact will be, but we know that it is likely to be significant. Is your position that the bill should be adequately resourced, as we know in advance that there is likely to be an impact, or that the proposals should not be implemented at all because the resource implication is so significant?

Vladimir Valiente

For SOLAR, it would be the former—the proposals should be implemented, but they should be adequately resourced. We had input to the COSLA submissions from the beginning of the bill process, and I believe that some of the responses to the initial consultation that the committee has received from local authorities alluded to the need for adequate resourcing given the implications for them.

Alistair Gaw

Social Work Scotland thinks that the bill should go ahead and the proposals should be implemented. I reiterate, however, that one or two options should be added so that not every case would necessarily go down the route of civil litigation. It would be advisable for the committee to look at some of the options that have been adopted elsewhere—in particular in Jersey, which has implemented practical solutions that have satisfied the majority of people.

The Convener

I think that we already know, from the evidence, that not everyone will go to litigation; we are probably looking at the worst-case scenario. However, I take your point. What would be required would potentially go way beyond your current resources.

Lauren Bruce

COSLA fully supports the intent of the bill to widen access to justice, but I echo the point about the significant financial implications. If we are to achieve the bill’s aims, thought will have to be given to how the financial burdens can be met and managed. Even the Jersey model or an alternative model would not stop the impact of, for example, data subject access requests and freedom of information requests.

The Convener

I understand that. The points about the cost of redacting and so on have been well made by COSLA. You said that you support the “intent” of the bill; would you go further than that? Are you saying that what is proposed is unmanageable and the resource issue is such that the bill should not proceed, or are you saying that we absolutely should go ahead with the bill but resources must be put in to deal with its effects?

Lauren Bruce

There absolutely should be a move to widen access to justice. Given all the unknowns around the bill, it is difficult to put a figure on the impact—

The Convener

The bill goes down a certain line—we understand that there are others, such as the Jersey model, which has been mentioned. Is it your position that you support the intent, or are you saying that you support the bill, as a measure, in the full knowledge that you do not have the resources to deal with it and resources would have to be made available to ensure that you could do so?

Lauren Bruce

I do not know whether the question has gone to our membership in quite that form. As with any financial burden, we welcome discussions with the Scottish Government on how costs can be managed, so that we can continue to provide the services that we do—in the knowledge that the burden could be significant in this context.

The Convener

Is that something on which you want to get back to the committee?

Lauren Bruce

Yes.

Oliver Mundell (Dumfriesshire) (Con)

Would the additional costs include the awards that might be made? I understand that, given that things have changed over time, some local authorities do not have insurance provision for what happened in the past and would end up picking up the bill from their on-going financial pot.

Vladimir Valiente

I agree that the insurance position is unclear. Every local authority must do a mapping exercise to ascertain what, if any, insurance was available at the time and what the terms of the contract were and whether it included excesses and limitations. It might well be that some insurance companies are no longer in existence, so the local authority would have to cover the costs. The insurance element will bring about extra work, conducting that mapping exercise. Thereafter, we might even enter into disputes with insurance companies about the terms of contracts at the time. There might be double litigation: the claim itself; and litigation against relevant insurers, if we do not agree.

Oliver Mundell

Would you seek additional financial support from the Scottish Government if, in a worst-case scenario, a council had to find millions of pounds from its current budget?

Vladimir Valiente

As I mentioned, SOLAR’s position is that the policy should be adequately resourced. If local authorities cannot meet that, extra funds should be made available to cover it. There might well be circumstances in which a local authority did not have insurance and a significant number of claims come in, which would have a serious and significant impact on the local authority.

Stewart Stevenson

There is a point to consider about indexing information so that you can dismiss or progress things right from the outset. If you are able to take things out at the beginning of the process, you will reduce your long-run costs. Have you made any attempt to estimate how much getting a decent index would cost?

Given my lifelong interest in genealogy, I highlight as a recent example the 1939 census, which has now been made available publicly in England and Wales and includes about 30 million names, addresses, professions and ages, cross-checked against the death index so that information on those who are still living is shown redacted. It appears that the commercial provider was able to do that for less than £1 million, which is much less than one might expect, and there are many other more complex and more comparable things that are routinely done by archivists.

Do you have any sense of how much it might cost to get to a position where, out of all those warehouses of paperwork, we know what there is, where it is physically and what names are in it? There is a lot of work being done in other domains that does all that, so it is not a new problem.

Alistair Gaw

Local authorities have warehouses of secure storage where such files are kept, so one could roughly estimate the quantity. The trouble is that one box could contain 100 files and another box could contain only one file, depending on the history of the individual. These things would cost significant amounts of money depending on the nature and quality of the evidence that is available. Anything before the mid-1990s will be entirely based on paper records, which have a scattered history going through three iterations of different local authorities, which will create difficulties. It might be worth discussing, either with COSLA or Social Work Scotland, whether a collective approach could be taken across local authorities to help to reduce some of those difficulties, and I would be happy to take that back to my organisation to see whether there is any scope for that.

Douglas Ross

We have spoken a lot about finance and how much it would cost to do that, but Vladimir Valiente will remember from his time at Moray Council that councils often look to make savings in staff costs, because people are often their biggest cost, and sometimes the legal services department is one where they look for staff reductions. Without considering how much it would cost, what capacity, in terms of the number of lawyers, would need to be employed in local authorities to deal with the potential increase in work?

Vladimir Valiente

I must emphasise the broad-church nature of the 32 local authorities. Some local authorities do most of their personal injury work in-house and might have in place mechanisms to deal with claims, but a small local authority such as Midlothian Council would not be able to cope. We have already done that exercise; at the moment we would not be able to cope with the claims. All that we can do is assist our internal clients in the lead-up to the claim and in the assessing process. Thereafter, actual representation would probably need to be by external solicitors, which would have a significant impact on the council’s legal costs. There will be a broad variety of teams across all the local authorities. Some authorities might be more capable and have the resources to deal with personal injury, but I suspect, workload being what it is, that others will require extra legal bodies to deal with claims. The larger authorities will be impacted more, because they cover wider areas and have more potential for claims.

12:30  

Douglas Ross

Does COSLA have a view?

Lauren Bruce

It is more Vladimir Valiente’s place, as a lawyer, to present a view, than it is COSLA’s, in this instance.

Douglas Ross

It is councillors who will be faced with their legal staff telling them, “You want me to do this committee report but I have to do work for an investigation.” Where will priorities lie for COSLA? Is the picture across the country that there has been a reduction in the number of legal staff employed by local authorities?

Alistair Gaw

The approach varies across the country. Some local authorities outsource and buy their legal services more than others do. I work for the City of Edinburgh Council; we buy in a lot of the legal support that we need, from time to time, which gives us a great deal of flexibility.

My take on what Douglas Ross asked about is that, as the situation starts to build, local authorities may increase the size of their in-house teams, but are more likely to commission work from external providers. The question will be how much of that expertise is available across the country; the laws of supply and demand will probably generate higher costs as things move forward. That is something else that has to be factored in.

Rona Mackay

I would like Vladimir Valiente to clarify something that he said earlier. I may not have understood it properly. Did you say that some local authorities are insured and some are not?

Vladimir Valiente

No. I am sorry; I suspect that currently all local authorities are insured. What I said was about looking back in time to see what insurance was in place, whether companies still exist, and whether councils were insured for the type of claim that we are talking about. It all depends on the terms of the contracts with insurance companies at the time. We need to do quite a significant mapping exercise in digging up our records about insurance.

Rona Mackay

I see. Thank you. That clarifies it.

Ben Macpherson

I will ask this panel the same question as I asked the previous panel. If the bill is passed, the new limitation regime will sit alongside the related area of law of prescription, which the Scottish Government has decided not to reform because it maintains that it is unable to do so without breaching the European convention on human rights. For clarity, I say that the effect of that decision is that, if the abuse occurred prior to September 1964, it will usually not be possible to raise a court action under the new regime. Have the witnesses any brief comments on whether the Scottish Government’s decision is correct?

Vladimir Valiente

I have not canvassed our members on that issue. My view is that the decision is correct, bearing in mind particularly the earlier evidence that the committee heard from the SHRC on article 6 of the ECHR and article 1 of protocol 1. That approach will be just and fair, moving forward. I do not know whether that is SOLAR’s view—I have not been able to discuss that with it.

Alistair Gaw

My view accords with that. The decision is pragmatic; the section 17D elements would kick in substantially in cases from before that time.

Lauren Bruce

As Vladimir Valiente said about SOLAR, COSLA has not canvassed members about that issue, but I agree with the view that the decision is correct.

Detective Chief Superintendent Boal

To be honest, I have not looked at the matter in great detail because my understanding, and my reading of all the previous documents, was that to go prior to that date was going to be really difficult in terms of the ECHR. The Scottish Government has taken the pragmatic position.

Mairi Evans

I will ask a similar question to the one that I asked the previous witnesses, and the witnesses that we had last week, about the definitions of “child” and “abuse” in the bill. There has been general agreement on the definition of “child”, so my question is really about how “abuse” is defined. We have had various suggestions about that. Some witnesses suggested that spiritual abuse should be included and that the list should be more definitive, but we have heard other opinions that the bill’s descriptions should remain fairly broad. What are your opinions on that?

Detective Chief Superintendent Boal

I absolutely understand that survivors want the broadest definition possible, but I also understand from quite a lot of written submissions that that might be unhelpful to some.

The definitions in the Scottish Government’s “National Guidance for Child Protection in Scotland 2014” are helpful. On sexual abuse, it says:

“Sexual abuse is any act that involves the child in any activity for the sexual gratification of another person, whether or not it is claimed that the child either consented or assented.”

On physical abuse, it says:

“Physical abuse is the causing of physical harm to a child or young person … Physical harm may also be caused when a parent or carer feigns the symptoms of, or deliberately causes, ill health to a child they are looking after.”

That is a “Fabricated or induced illness”. On the convener’s earlier example of a child not having designer shoes being emotional abuse, the guidance is clear. It states:

“Emotional abuse is persistent emotional neglect or ill treatment that has severe and persistent adverse effects on a child’s emotional development … Some level of emotional abuse is present in all types of ill treatment of a child”

but

“it can also occur independently of other forms of abuse.”

The issue that I would like to raise is neglect, which is clearly covered in current Scottish child abuse policy and procedures, which say:

“Neglect is the persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development.”

I think that we mentioned in our written submission that the law is clear even going back as far as the Children and Young Persons (Scotland) Act 1937, section 12 of which—although we would probably argue that it is a bit out of date now—covers:

“any person … who has parental responsibilities … or has charge or care of a child”

and

“wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed”.

Neglect is seen as something different. As Bruce Adamson said, the Scottish Human Rights Commission’s written submission states:

“The Commission … considers that neglect should be explicitly included in the definition of abuse to bring it into line with international human rights law”,

which says that

“child abuse includes physical, emotional, or sexual mistreatment of a child or the neglect of a child”.

There, again, neglect is considered separately.

I know that we are looking at non-recent cases, but as we mentioned in our written submission,

“In 2011 neglect remained the most common reason for registration or initial category of those made subject to a child protection plan”.

We also know that

“By 2016 the two most common concerns identified at Child Protection Case Conferences for children who were subsequently placed on the Child Protection Register were emotional abuse (39%) and neglect (37%).”

Neglect was an issue previously and still is. Our understanding of it is far better because of all the work that has been done, predominantly at the University of Stirling by Professor Brigid Daniel. The Scottish Government child protection improvement programme, which is on-going at the moment, has a work stream that is considering neglect specifically. I think that it is focusing on three areas: online abuse, child sexual exploitation and neglect.

One of the representatives of Former Boys and Girls Abused in Quarriers Homes last week suggested that the bill would widen awareness. If we do not mention neglect in it, it might not be in the spotlight.

Mairi Evans

You are suggesting that neglect be referenced in the bill.

Detective Chief Superintendent Boal

Indeed, I am. In addition, although I know that it is not the point of the bill, it is suggested that all legislation that imposes some form of sanction is a means of deterring behaviour. I am not suggesting that the bill alone will deter individuals who want to abuse and neglect children, but if it does, that will be great. That is my submission on the point about neglect.

Lauren Bruce

On the points about certainty that were made at last week’s meeting, I think that a policy question must be asked. If the approach goes forward into the court system, will neglect be included in the interpretation of the forms of abuse that are listed, and should it, if that is the case, be included in the bill up front, before it becomes an act, rather than becoming included through the court process, which can be long and would add to the uncertainty for victims?

Alistair Gaw

It is really important to include neglect as a category of abuse. Neglect is not just a sin of omission, and it can be fatal. The Declan Hainey case is a good example of that.

For me, the concept of spiritual or psychological abuse probably falls into the category of “emotional abuse”. If the bill were to refer to “sexual abuse, physical abuse, emotional abuse and neglect”, I think that that would cover it.

Vladimir Valiente

I do not think that SOLAR discussed the point about neglect. However, as someone who deals with child protection, I think that “neglect” would fit nicely in the bill, because the Children’s Hearings (Scotland) Act 2011 mentions neglect as one of the significant harms that are relevant when we apply for a child protection order. Including the word would make sense from that perspective but, as I said, there is no SOLAR position on the matter.

Mairi Evans

Thank you.

The Convener

That has been helpful. I am conscious of the clock, so I must ask for questions and answers to be as succinct as possible, to ensure that we cover everything that we want to cover.

Liam McArthur

This is an issue that I have followed up with the other panels. I think that all the witnesses were silent on proposed new section 17D, which is provided for in section 1, on the discretion of the courts. Unless witnesses tell me otherwise, I will assume that you are generally comfortable with the provisions.

Police Scotland suggested in its submission that, as we scrutinise the bill, the committee should consider situations in which a civil claim is raised while a criminal investigation or prosecution is on-going. It is not clear what your point is and what the committee should be aware of or concerned about in such circumstances.

Detective Chief Superintendent Boal

We were highlighting what happens when a criminal investigation or live proceedings go on in parallel with a civil process. I suppose that the civil aspect might be better put to the Crown Office and Procurator Fiscal Service than to the police, but I can say that there are issues about what would take precedence, and there is, to a certain extent, the difficulty of contamination of evidence.

I gave the example of significant case reviews in child protection or multi-agency public protection arrangements. The COPFS is of the opinion that an SCR could not take place until a criminal case has concluded, but there is now a bit more leeway. However, there is a difficulty when two processes are running in parallel. Which one takes precedence? There has been a conversation between the COPFS and the Scottish child abuse inquiry about what would happen in that regard.

Our point is that the bill is silent on that and we are a wee bit concerned about what would happen if we were dealing with a live investigation or there was a live prosecution while a civil process was going on. For example, if witnesses were re-interviewed, would that be disclosable? It is about all the issues that arise from parallel proceedings.

12:45  

Vladimir Valiente

That is something that crops up from time to time in local authority work in which there is a criminal prosecution and a civil case. Generally, because of sub judice considerations, the criminal prosecution has to take shape and reach an outcome first, before the civil court proceedings can take place because, as was mentioned earlier, there might be contamination of witnesses, or running of evidence that the procurator fiscal might not want to be heard in court until there is an opportunity to question a particular witness. I guess that it would be for the courts to decide whether to run both in parallel, but I suggest that the criminal element will always be heard first, then the civil element, simply to ensure that the right conviction is reached. The civil process may actually be helped if there has been a conviction.

The Convener

Our last question is from Mary Fee, on the specialist hub.

Mary Fee

I had forgotten about that. I apologise; I had moved on. COSLA’s written submission suggested that there would be benefits in childhood abuse cases being heard by a specialist hub of the personal injury court. Do witnesses see any benefits or drawbacks?

Lauren Bruce

Part of the difficulty—which we have explored already—is about responding organisations such as local authorities knowing what is required of them in relation to a civil case. Vlad will be able to go into the issues in more detail, but some of the time limits will be unprecedented, witnesses may be untraceable and the institutions that existed at the time may not exist anymore, so it would help to develop a degree of specialism in the system around such cases.

A benefit for victims in the model could be that sheriffs in those courts would be specially trained, as they are in the domestic abuse courts. There could be benefits all round in quickly and flexibly developing a process around such cases, which will be a unique type of personal injury action—if they go into the personal injury court setting.

We would definitely encourage that not being the only model that is considered: we are keen to see systems such as the Jersey model—it has been mentioned—which has commonalities with the Criminal Injuries Compensation Authority, also being explored.

Mary Fee

Would a specialist court to deal with such cases increase victims’ confidence about going to court and going through the court process?

Lauren Bruce

I do not know that that is for COSLA to answer, but my personal perspective from work that I have done in the past on access to justice is that a specialist court would increase victims’ confidence. It could make quite a big difference for victims to know that they are going into a setting in which the sheriffs have an understanding not just of the case that is in front of them, but of other issues and elements that might have impacted on the victim’s life. That is a personal opinion—it is not one from COSLA.

Mary Fee

Just before I bring in Vlad, I will pose another question to which he might have an answer.

The previous panel did not raise this as a concern, but they pointed out that we would need more than one specialist hub. If there were to be only one unit, there would be the danger of things being done by rote. Allowing for variability by having more than one hub and sharing expertise across three different units could perhaps be of benefit.

Vladimir Valiente

Yes—you pre-empted my answer. Laura Dunlop mentioned that there are advantages and disadvantages to having a specialist system. The advantage is uniformity in dealing with applications. Among the disadvantages is the potential for becoming set in your ways so that way you do things becomes the only way. Laura Dunlop developed that point well. Having more than one specialist hub might assist in that process, if we could ensure that all the hubs were co-ordinated and able to talk to one another.

Lauren Bruce

To clarify, I say that it is my understanding that, because the cases would typically be above the value of what is now simple procedure but below the value of a case in the Court of Session, they would go to the personal injury court, which would be based in Edinburgh, so they would not be raised in different sheriffdoms throughout the country. Having one hub but with several sheriffs participating might be a solution.

The Convener

Stewart Stevenson has a further question that he will not now ask because we have run out of time. The clerks will write to you with it, so we would be grateful for your responses. I thank all the witnesses for their evidence, which has helped us tremendously in looking not only at what must be in the bill, but at what else must be catered for and thought about in order to ensure that the bill works, if and when it is passed.

The next meeting of the Justice Committee will be on 7 March, when our main item of business will be our first evidence session on the Railway Policing (Scotland) Bill.

12:52 Meeting continued in private until 13:02.  

The Deputy Presiding Officer (Christine Grahame)

I am moving straight on, as time is tight in this debate as well. The next item of business is a debate on motion S5M-05290, in the name of Annabelle Ewing, on the Limitation (Childhood Abuse) (Scotland) Bill at stage 1.

15:00  

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

I am very pleased to open the debate on the general principles of the Limitation (Childhood Abuse) (Scotland) Bill. I thank all those who gave evidence, and I thank the convener and members of the Justice Committee for their detailed scrutiny of the bill at stage 1. In particular, I thank the survivors who have been brave enough to come forward and share their experiences. Many survivors have campaigned for this change in the law for many years and I thank them for their bravery and persistence. Without them, we would not be here today.

I welcome the Justice Committee’s support for the general principles of the bill. I am pleased to see that the committee recognises the importance of widening access to justice and removing a barrier that has proved insurmountable for so many survivors. The committee has highlighted some key issues that I will seek to address in the debate.

As some members will be aware, the bill was introduced in response to a recommendation by the Scottish Human Rights Commission. Through the SHRC’s work in the interaction process, which is a facilitated negotiation within a human rights framework, and its subsequent “Action Plan on Justice for Victims of Historic Abuse of Children in Care”, it brought to light the clear difficulties that survivors currently face in trying to access the civil justice system. The SHRC’s work, along with evidence from a range of other sources, demonstrates that the three-year limitation period is a barrier that most survivors have found impossible to overcome.

That is why I am here today. The bill is about access to justice. It is about acknowledging the unique position of survivors of childhood abuse, in addition to recognising the abhorrent nature of the abuse, the vulnerability of the child at the time and the profound impact of such abuse, which lasts well into adulthood.

The bill removes the three-year limitation period for cases of childhood abuse and does so for rights of action arising before or after the bill comes into force. Moreover, the bill allows cases that have been raised previously, but which were unsuccessful precisely because of the limitation period, to be relitigated. The bill is a significant step for survivors of childhood abuse, as it recognises their unique position and the barriers that they have faced in the past.

As I have been keen to point out, the bill is about striking a balance. At every step in the process of developing the policy and drafting the bill, important judgments have had to be made about where the balance should be struck. That has included careful consideration of the implications of the European convention on human rights and striking a balance between being inclusive and, at the same time, avoiding unintended consequences.

On the definition of abuse, I have listened carefully to the evidence that has been presented to the Justice Committee and I have noted the committee’s recommendations. The bill goes further than other jurisdictions by including sexual, physical and emotional abuse, while similar legislation elsewhere has been limited to sexual abuse only or has included only emotional abuse that is connected to other forms of abuse.

I have noted the committee’s concern about the uncertainty around emotional abuse. Although it may be more challenging to define and prove emotional abuse, that does not make the impact of such abuse any less fundamental or its consequences any less severe. We are concerned with abuse that seriously damages a child’s emotional health and development.

It will ultimately be for the court to decide whether a case presented to it involves emotional abuse. Providing any further definition on the face of the bill might prove to be misleading or exclusionary. I agree with the Scottish Human Rights Commission that the Scottish courts are well placed to assess on a case-by-case basis whether a case meets the relevant threshold to constitute abuse.

I have also considered the evidence that was put to the Justice Committee about the different forms that abuse can take and how that might influence the bill’s definition of abuse. I am keen to ensure that the bill is confined to truly abusive behaviour, avoiding unintended consequences such as satellite litigation testing and pushing its boundaries. It is also important to point out that for forms of abuse not mentioned in the bill, the definition is inclusive rather than exhaustive and that the court is well placed to make appropriate judgments based on the evidence. I have, however, reflected on the evidence to the committee and its recommendation in relation to abuse that takes the form of neglect, and I will be giving that issue further careful consideration.

The bill seeks to insert proposed new section 17C into the Prescription and Limitation (Scotland) Act 1973. It provides that cases that were previously raised but were unsuccessful because of the time bar can be relitigated, regardless of whether they were determined by the court or settled between the parties without damages being paid, including where there is a decree of absolvitor. I recognise that that is a unique step, but it is being taken because the position of childhood abuse survivors is unique. The context of childhood abuse, the particular impact that it has on survivors and the fact that limitation periods have in the past operated so as to frustrate access to justice for survivors provide the necessary special justification.

If decrees of absolvitor were not included in the bill, a large number of survivors who previously raised cases—often cases that were sisted behind a lead case awaiting the outcome of that case—would not benefit from the bill. Those survivors agreed to the disposal of their cases because of the limitation period and it would be fundamentally unfair to treat those cases differently from cases that happened to be the lead case and that were therefore disposed of by the court, by decree of dismissal, on the basis of those same limitation grounds.

Liam McArthur (Orkney Islands) (LD)

I very much understand the rationale for including decrees of absolvitor in the scope of the bill, but I am struggling to understand how that does not necessarily set a precedent that has the potential to be dangerous in other areas of the law.

Annabelle Ewing

What I have tried to stress at the outset today and, indeed, in committee is that the bill was drafted further to very careful consideration of striking the right balance in both reflecting the unique set of circumstances pertaining to survivors of childhood abuse and, of course, respecting laws that are otherwise applicable, including the ECHR. Having conducted that careful consideration, I do not share the member’s concern about there being any wider application. The way in which the bill has been drafted clearly sets forth the special justification requirement that has to be adduced in order to displace certain elements that would otherwise be applicable. Having carefully considered the matter, I can assure the member that I am satisfied that the bill’s provisions are ECHR compatible.

I have listened with interest to the evidence presented to the Justice Committee in relation to previously raised cases. The committee has noted concerns about the bill’s provisions that prevent actions from being reraised where there was a financial award that went beyond simple reimbursement of expenses. Those provisions are based on the policy that only actions that previously failed on time bar should be allowed to be reraised, thus reflecting the balance that I explained to Mr McArthur a moment ago. If a survivor received financial compensation from the previous action, the link to failure due to time bar is not there.

As I said, the bill is about striking a balance, and the issue of previously raised cases is one of the issues where special care has to be taken. The bill already goes further than other jurisdictions that have implemented similar legislation. Those other jurisdictions either do not allow relitigation at all or restrict relitigation to cases determined by the court. I noted earlier the Justice Committee’s concern about including the decree of absolvitor in the bill and whether doing so would be ECHR compatible. However, the suggestion mooted by the committee of off-setting any compensation previously paid against any new compensation that would be awarded would take the ECHR concerns to a whole new level and would significantly tip the balance away from the special justification and proportionality that are required in respect of potential interference with ECHR, in particular article 1 of protocol 1.

I have also noted concerns with regard to potential difficulties in establishing the terms of the settlement. As I said in my evidence to the committee, a pursuer seeking to rely on section 17C would have the burden of proving that the circumstances of their case fell within its terms unless that fact was admitted by the defender. Proving that the case is covered by section 17C will involve the pursuer leading evidence to that effect, which could involve a statement of their own understanding of what previously took place. It could also include records that the court holds, or the pursuer could call on the defender to disclose any formal documentation to which the defender had access. I will reflect on what, if anything, can be clarified in the explanatory notes.

The committee has also noted some concerns about proposed new section 17D of the 1973 act, which will ensure that actions to which the bill applies will be able to proceed only if the defender’s convention rights would not be breached as a consequence. Although it is clear that, even without the section, such actions would not be able to proceed, section 17D ensures that there is a mechanism for those issues to be dealt with and it sets out the test that the court is to apply. Those provisions make it clear that, as a legislature, we do not expect every single case to proceed just because it falls within the new section 17A, and we recognise that there will be cases where issues of fairness and prejudice will have to be carefully assessed. That is important, especially in the context of the unusual steps that we are taking in the bill. Without section 17D, it might appear as if the legislature assumed that all cases should go ahead regardless of ECHR concerns. Removing that section could therefore result in a challenge to the bill, which would have an impact on all potential cases, with the result that survivors would be deprived of the benefit of the bill while that challenge was resolved.

Section 17D is another difficult area that has required careful reflection on where the balance should be struck. Although I sympathise with calls for more clarity—it is, after all, a very difficult and complex area of law—it is important to keep in mind the point that each case must be considered on its own facts and circumstances. It is clear that what is relevant in one case could be completely irrelevant in another. Although it is impossible to predict what will be important in each case, factors that the courts might consider to cause prejudice to the defender include the diminution of the quality and availability of evidence, or the defender’s affairs or resources having been arranged in reliance on the disposal of an earlier case. However, it must remain a task of the court to assess whether or not those or other factors would give rise to the defender being substantially prejudiced in all the circumstances of the case and whether, having had regard to the pursuer’s interest, the prejudice is such that the action cannot proceed. I am, however, keen to avoid a checklist approach to those complex issues. My concern is that more guidance in the legislation, such as a list of factors, could unhelpfully constrain the court’s considerations.

In conclusion, I thank the Justice Committee once again for its detailed scrutiny of the bill and for its support of the general principles. This bill is about access to justice and about recognising the unique position of survivors of childhood abuse and the barriers that they currently face. That unique position means that the current limitation regime acts as an impossible barrier for most survivors. It requires the survivors to explain to the court why they have not raised an action earlier, a task that has proved extremely challenging and traumatic for many survivors. It is clear that the current limitation regime has created an in-built resistance to allowing historical claims to proceed. The bill recognises that that inbuilt resistance is not appropriate for cases of childhood abuse because, by the very nature of those cases, it is likely to take years—often decades—before a survivor is in a position to come forward.

When meeting survivors, I have been struck by their dedication, their bravery and their determination to keep fighting for the acknowledgment and recognition that they deserve, and for justice. I hope that all members will join me today in supporting the general principles of the bill, which gives them that recognition.

I move,

That the Parliament agrees to the general principles of the Limitation (Childhood Abuse) (Scotland) Bill.

The Deputy Presiding Officer

I call Margaret Mitchell to speak on behalf of the Justice Committee.

15:14  

Margaret Mitchell (Central Scotland) (Con)

It is a pleasure to speak in the stage 1 debate on the Limitation (Childhood Abuse) (Scotland) Bill and, on behalf of the Justice Committee, to thank the various witnesses who took the time to provide evidence to the committee. My grateful thanks are also due to the clerks and the committee members for their hard work in producing the report.

In particular, I pay tribute to those survivors of childhood abuse who were willing to share their views with the committee, either in private or during our formal evidence sessions. Their contributions have been invaluable in shaping our thinking on the bill, and we fully recognise the immense courage that it took to appear before the committee.

Childhood abuse, in whichever form it takes, is abhorrent. The committee heard that being the subject of childhood abuse can have a silencing effect. Shame, guilt and fear, as well as the stigma associated with abuse, can prevent survivors from disclosing the abuse until many years after the event. In addition, because abusers are often figures of authority, survivors are frequently left with feelings of fear or mistrust towards authorities, which in turn means that it may be a considerable number of years before survivors feel able to disclose or to take action—if they can ever feel able to do so. Despite that, current civil law fails to recognise why there can be delays in reporting, and survivors are expected to make a claim by their 19th birthday.

The courts have typically not accepted explanations for delay based on the shame, fear and psychological difficulties that can result from childhood abuse. Although the current law provides judges with the discretion to allow a case to proceed even if it is brought outwith the three-year limitation period, that discretion has virtually never been used. In more than 40 years, just one reported case relating to historical childhood abuse has been allowed to proceed. In view of that, the committee considers that survivors have been let down by the justice system and have been denied the opportunity to have their voice heard.

The bill removes the limitation period, which is also known as the time bar, for civil claims relating to childhood abuse. The committee heard powerful evidence that the time bar has created an insurmountable barrier to access to justice in the civil courts. Survivors of such abuse should be able to bring a civil claim for damages if they wish to do so. The committee is therefore unanimous in its support for the bill, which gives survivors a voice and, crucially, removes a barrier to accessing justice. Furthermore, given the nature of childhood abuse, the committee considers the retrospective effect to be both necessary and justified.

Pursuing a civil action will not be the right solution for all survivors, and in that respect the bill is not a panacea. In fact, the committee heard that the court process could sometimes do more harm than good. However, it is extremely important to recognise that, as one survivor told the committee,

“The significance of the bill is that, at long last, survivors will have the choice.”—[Official Report, Justice Committee, 21 February 2017; c 5.]

That said, support must be available to survivors to take that choice. The committee whole-heartedly agrees with the minister that without such support, the bill will be an “empty gesture”.

If a survivor does not decide to pursue civil action, there are other options open to them, including through the Scottish childhood abuse inquiry and under the Apologies (Scotland) Act 2016.

I turn to other provisions. The bill does not remove the time bar for survivors who were abused before 1964. That is because their substantive right to claim compensation will have been extinguished entirely by the law of prescription. To revive those rights in the bill would involve imposing legal liability anew where none had existed for more than 30 years. The committee is persuaded by the Scottish Government’s argument that that approach would raise serious human rights implications, and it urges the Government to consider what other options for redress could be made available in pre-1964 cases.

The bill defines “abuse” as including physical, sexual and emotional abuse, and, overall, the committee agreed with that definition. However, members heard strong support, particularly from the Scottish Human Rights Commission, for explicitly including “neglect” within the definition. The committee considers that that would be consistent with other domestic and international law, including the United Nations Convention on the Rights of the Child and the Scottish Government’s own national guidance for child protection in Scotland, which clearly documents that abuse and neglect are forms of maltreatment.

More complex provisions include proposed new section 17C of the Prescription and Limitation (Scotland) Act 1973, which allows certain previously raised cases to be reraised, including those disposed of by a decree of absolvitor. That, in turn, has proportionality and human rights implications, in particular in relation to a person’s right to a fair trial and their right to peaceful enjoyment of their possessions. A decree of absolvitor is a final judgment of the court in favour of the defender and usually prevents the same issue from being litigated again. The committee understands that there is no precedent for legislating away decrees of absolvitor, as provided for in the bill, and that section 17C therefore raises issues about legal certainty. Furthermore, it was the view of some witnesses that that approach undermines fundamental principles of Scots law and could breach convention rights.

Proposed new section 17D of the 1973 act provides safeguards for defenders. The committee’s report raises a number of concerns about the provisions in that section, which I hope other members will refer to in more detail. Suffice it to say that the minister told the committee that the bill is all about striking balances, and the committee recognises that to be the case. Notwithstanding the minister’s opening comments, it has, therefore, asked the Government to look again at those provisions to ensure that the right balance is struck.

Finally, a vitally important issue raised during the committee’s scrutiny concerned the bill’s financial and resource implications. The committee heard that those could result in significant costs for bodies such as local authorities and charities. The financial memorandum does not attempt to quantify those costs. While the committee recognises the difficulties in doing that, it considers that the financial memorandum does not fully reflect the fact that those costs go beyond any compensation to be paid. There may be, for example, a significant administrative burden in responding to information requests from people who are considering making a claim. The committee’s report therefore highlights the potential negative impact of the bill’s financial and resource implications on the provision of current services. That includes the potential adverse effect of the provisions on support services. In the words of one witness, it would be “illogical” for the bill to adversely affect the vital support provided today to children who have been abused or who are at risk of being abused. The committee has, therefore, called on the Government to ensure that the bill is properly resourced.

The committee supports the removal of the limitation period for childhood abuse claims and fully endorses the general principles of the bill.

15:23  

Douglas Ross (Highlands and Islands) (Con)

Scottish Conservatives support the bill and its aims. Like the convener, I put on record my thanks, as a member of the Justice Committee, to the clerks and the Scottish Parliament information centre for their work during our stage 1 considerations. I acknowledge the sensitive and constructive way in which Margaret Mitchell chaired our meetings and the evidence sessions that looked at such an emotive and personal issue.

Above all, like the minister and the convener, I pay tribute to everyone who gave evidence and responded to the committee’s call for evidence. The bravery shown by the witnesses who had been victims of childhood abuse highlighted their resolve that a change in the law is required.

As a committee, we heard powerful evidence that the current limitation regime has created a significant barrier to access to justice for survivors of childhood abuse. Although section 19A of the Prescription and Limitation (Scotland) Act 1973 allows the courts to ignore the time bar where it seems “equitable to do so”, the fact that the courts have used that discretion only once since the 1973 act was passed more than four decades ago means that a change is needed.

We know that victims often do not come forward with compensation claims until many years or decades after their abuse. It is wrong that the limitation period should prevent victims from seeking that course of redress. Tonight, the Parliament, by approving the stage 1 report, can start the process of correcting that wrong.

Although there is support from the committee for the bill, it noted in its unanimously agreed report concerns that I hope the Government will continue to monitor and address.

I have read the minister’s response to the committee report and have concerns that legitimate issues that we raised have so far received only a superficial response from the Government.

An example concerns the Scottish Government’s financial memorandum, which is based on a figure of 2,200 cases that could be brought forward initially following the passage of the legislation. The Government’s response to our report maintains that position, despite several witnesses questioning that figure and the committee noting at paragraph 222 that the

“2,200 figure could be a significant underestimate.”

Police Scotland argued that there is value in “further scoping” the methodology that is used in the financial memorandum and considered the 2,200 figure to be a “conservative estimate”. Further, Harry Aitken of Former Boys and Girls Abused in Quarriers Homes highlighted to the committee that one firm of solicitors previously had 1,000 survivors prepared to raise an action, but that it had not been able to proceed following a test case relating to the time bar.

It is paramount that survivors who have previously been unable to raise a civil action due to the time bar are not then left frustrated and disappointed with the legislation because the Scottish Government has not adequately projected the number of cases that could be brought forward. The Government must put in place the necessary resources to support that possible increase in actions.

To stay with finance, I put on record my concern about the Finance and Constitution Committee’s scrutiny of the bill—I note that the convener of that committee is in the chamber. At paragraph 37 of our report, we note that the Finance and Constitution Committee received responses to its call for evidence on the financial memorandum but then agreed that it would give no further consideration to the financial memorandum. I understand that that has not been the practice in the past and I would be keen to understand why the Finance and Constitution Committee took that approach when many others have raised issues about the financial implications of the bill.

Another concern that was shared by some witnesses concerned the capacity of the court system. It is important that people who have waited for many years to raise an action are not discouraged by lengthy and potentially avoidable delays. On page 10 of her response to the committee report, Annabelle Ewing said that she expected

“that the actions raised as a result of the Bill will be spread over a number of years”.

However, I would suggest that there is a compelling argument that many people who have waited several decades for a genuine opportunity to raise an action will want to do so very soon after the bill becomes law. That issue must be fully considered by the Scottish Government.

The final issue that I want to raise is the recommendation at paragraph 245 of the committee’s report, which the convener just alluded to and which members of all parties agreed to. It says:

“It is important that the Bill is properly resourced to ensure both that its policy intent is achieved and to prevent any negative impact on the provision of current services by local authorities.”

That recommendation is far stronger than the response that I got from the minister at committee when I asked whether the Scottish Government was addressing the issues that the Convention of Scottish Local Authorities had raised about resourcing investigations of claims and potential financial awards. The minister responded that the Government were “in conversation with COSLA” and said:

“We have to see what happens.”—[Official Report, Justice Committee, 14 March 2017; c 25.]

The committee says that the Government must resource the bill and that local authorities must not have to cut services to pay for historical offences. We need the Scottish Government to accept that recommendation and tell us how it will achieve that.

As the Justice Committee’s report states, the bill is no panacea: it will not be a solution for everyone. However, there can be no doubt that, from the point of view of the witnesses—witnesses whom I felt privileged to listen to—the bill is an important step forward for many in terms of their ability to access justice.

It is our duty as a Parliament to ensure that the bill meets the aspirations of the people who have suffered childhood abuse. Having waited so long for this opportunity, it is incumbent on each and every one of us to give the victims the best legislation and ensure that we give survivors the voice that they have been denied for so long.

15:29  

Claire Baker (Mid Scotland and Fife) (Lab)

The bill is narrowly defined, but important. The issue that it seeks to address has been recognised as an injustice for a number of years. Child abuse—sexual, physical and emotional—has a lasting and damaging impact on the person’s life; we are aware of the risks and vulnerabilities that they must face in creating safe, secure and happy lives for themselves. The civil justice system is a part of that process that some survivors want to access, so the bill will make that possible. The report acknowledges that although the bill is not a panacea and will not be the right path for everyone, it will provide choice.

I was struck by the committee’s thanks to the survivors who presented evidence to it, recognising their courage in sharing their experiences. We should all recognise that the legislation is being introduced in order to provide options for people who have suffered a traumatic and damaging childhood and adolescence. The bill is limited in what it can achieve in that it provides a date beyond which claims cannot proceed. Although the bill will extend access to justice, it is not a path that all survivors will wish to take. Nevertheless, it increases the options for people to have their voices heard and acknowledged.

Some evidence questions the necessity of the bill and highlights the fact that section 19A of the Prescription and Limitation (Scotland) Act 1973 gives courts discretion to waive the time limit. There has also been debate about whether the bill will undermine legal certainty, about whether it will create an exemption that will set a precedent, and about the quality of evidence, which could be compromised by the passage of time. However, the courts’ discretion has been exercised only once.

Witnesses described the barriers that survivors who seek to take legal action face, the fact that the time bar does not recognise the complexity of the nature of the abuse, which creates barriers to raising a claim, and the inconsistency with being able to pursue a criminal case for child abuse. The submission from Victim Support Scotland outlines some of the difficulties that survivors face. It states:

“It can take many years for someone to realise that what has happened to them was in fact abuse, and it is common for abusers to use silencing tactics to ensure that the abuse is kept hidden. A significant amount of time can also be required for a person to feel able to disclose their abuse ... Because abusers are often figures of authority in the victims’ lives, they are regularly left with feelings of fear or mistrust towards authorities, which presents challenges in reporting the abuse or participating in court action.”

The Association of Personal Injury Lawyers gave evidence and argued that

“Anyone who has looked at this matter over the years would be forced to conclude that the Scottish judiciary is an extremely conservative body and that it has operated the discretionary power in a way that has simply closed the door”.—[Official Report, Justice Committee, 21 February 2017; c 24.]

Although the bill is welcome, it is regrettable that it has perhaps taken longer than was necessary to introduce it. The difficulty with the time bar is well documented. In 2008—nearly 10 years ago—Lord McEwan said in a judgment:

“I have an uneasy feeling that the legislation and the strict way the Courts have interpreted it has failed a generation of children who have been abused and whose attempts to seek a fair remedy have become mired in the legal system. ... The concerns I expressed ... remain with me although sitting in the Outer House there is little I can do about it except to hope that reform will not be long delayed.”

I welcome the Government’s having introduced the bill in this session, but I cannot help but consider the survivors who have continued to be excluded from civil action when they could have been given an earlier remedy.

The bill has been introduced in the shadow of the Scottish child abuse inquiry, which has been hugely challenging, but also problematic, and has struggled to maintain the confidence of all survivor groups. Although the bill addresses one aspect of the legacy of abuse and goes further than the scope of the inquiry, it is imperative that the inquiry delivers accountability, answers and transparency.

Although I, along with the committee, support the broad principles of the bill, a number of areas require further clarification or debate. In recognising that the bill provides choice for survivors, there must also be recognition that bringing an action is, as has been said, a “difficult task”, given all the normal practices of the legal system. The minister might want to say more about what support could be made available to survivors who bring civil actions, and about what training or specialisation there could be in the legal profession. There was also a discussion of the merits of specialist courts, which the Government could legislate for, were it to accept the case for them.

There is a further debate to be had about the definition of abuse. Although I was not convinced by the arguments opposing a non-exhaustive definition, there were persuasive arguments about expanding the categories of abuse to ensure consistency with the ECHR and international human rights law. I welcome the minister’s comments in that regard this afternoon. Witnesses also raised questions about spiritual and psychological abuse, which the minister considered and thought would be covered by emotional abuse. However, a bit more certainty on that might be helpful.

There are two final issues that I wish to raise: a financial redress scheme and the accuracy of the financial memorandum. The Convention of Scottish Local Authorities, Social Work Scotland and the Society of Local Authority Lawyers and Administrators in Scotland argue the merits of a financial redress scheme. The bill will not apply to people who were abused prior to 1964, and there is no civil action available to them; I understand that a financial redress scheme could be a way to acknowledge their experience. It is also argued that that could avoid the stress and exposure that would come with the public declaration that would be needed in a civil case. Such a scheme might also acknowledge the age and the health of some complainers by ensuring that they are provided with redress while they can access it. A financial redress scheme has been described as being a way to complement the bill rather than to be an alternative to it. I urge the Government to advance work on that as soon as possible.

The committee expressed concern about the bill’s financial impact and the potential number of actions that will be brought forward; it believes the estimate to be conservative. The committee also heard from COSLA and others concerns about potentially significant costs to defenders. The Government must resolve those important matters.

I imagine that there will at stage 2 be greater interrogation of the bill on retrospective application, the fair hearing test and the substantial prejudice test. It is important that we get right the legislation and that it delivers the policy objective that it aims for, which we all support. The Government will have our support in taking forward the legislation.

15:35  

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Access to justice is fundamental to a civilised democratic society, and the Scottish system has a track record to be proud of. Consequently, the Limitation (Childhood Abuse) (Scotland) Bill that is before Parliament today is important and necessary. It will be the vehicle for access to justice for thousands of the most vulnerable and wronged people in our society—people who have been barred from justice simply because they were unable to bring a civil action within a three-year period. Three years is not long enough for survivors to garner the strength to proceed with civil actions against their abusers. They have been emotionally terrorised, stricken with fear and guilt and they simply need longer—much longer—to come to terms with what has happened to them.

In a study of sexual abuse allegations that were made by 180 survivors against the Anglican clergy in Australia, the average time from the alleged sexual abuse to a complaint being made was 25 years for males and 18 years for females. These are not court actions about neighbours fighting over a piece of land or about suing a company for damages; they are about seeking recognition and an apology for being robbed of a childhood and being sentenced to a lifetime of unimaginable emotional distress.

During the evidence-taking process, Justice Committee members heard shocking, painful and distressing accounts of the terrible abuse—sexual, physical and mental—that survivors had suffered during childhood. If it was painful for us to hear, it must have been agonising for the survivors to recount, and I cannot thank and commend highly enough those who had the bravery and courage to do so. From somewhere deep within, they found the strength to speak out about their traumatic experiences, about the cruelty that had been visited on them, often by people they trusted, and about how they were left feeling worthless and violated. They spoke out so that such vile crimes would never again be covered up. They did it to send a message to abusers that they will be caught and that justice will be done, so that future generations do not have to endure a lifetime of suffering, as they have. They did it to ensure that there is no hiding place for abusers.

As Douglas Ross and others mentioned, there have been fears that the bill will open the floodgates to people seeking compensation, which would be costly and would put extra pressure on the court system. At this stage, the numbers who would seek access to justice for historical crimes is unknown—estimates vary widely. There is simply no way of making predictions, although the Scottish Human Rights Commission considers that the vast majority of survivors will not go down the civil court justice route, and is certain that that recourse will not be suitable or desirable for everybody. Many survivors could simply not face the prospect of publicly resurrecting the horrors that they have kept locked away in a box throughout their lives; bringing that to court would not be the answer for them. For those who bring a case to court, it is clear that their expectations must be managed, in particular in claims that may be historic or partial. There must be support for claimants.

As was discussed at the committee, there may be potential to have specialist judges or courts. Ultimately, that decision is for the Lord President to make. The committee also carefully considered the definition of abuse and decided that it should be non-exhaustive and inclusive, because survivors have suffered such a wide range of abuse.

We found a common thread through most of the testimonies: most survivors would not bring a case to court for the money. Many will simply want the perpetrators to be brought to justice and an apology made for the terrible injustice and violation that they have suffered and that has blighted their lives. It is only now that they feel strong enough to seek justice.

Many survivors have been so emotionally damaged that they have been unable to forge successful careers and attain a good standard of living. Their financial potential has not been realised and they have struggled to make ends meet. However, how can we put a price on what they have suffered? We simply cannot, which is why, for most survivors, it is not about money, but about long-awaited justice.

Of all the speeches that I have written for debates in the chamber over the past year, this has been the hardest to write because it is about something that is so sensitive and personal to the people who are affected that, as someone who has never endured that suffering, I hardly feel qualified to comment on it. However, the bill will bring some light at the end of a long, dark tunnel for some survivors, so I am happy to commend its general principles to Parliament.

The Deputy Presiding Officer (Linda Fabiani)

Time is a bit tight, so I would appreciate everybody doing as Ms Mackay did and coming in below time, if possible.

15:40  

Jeremy Balfour (Lothian) (Con)

I welcome the bill, the debate and the work that the Justice Committee has done to get the bill to this stage. As someone who is not a member of the committee, I have to say that it was fairly harrowing to read the report. I did not have to listen to their evidence directly, so I pay tribute to the people who came in and were brave enough to give the evidence that was required, and to the committee for dealing with it so sensitively.

As members are aware, the bill will create for childhood abuse cases a special regime in respect of the time limit for personal injury actions by removing the three-year time limit that exists for certain types of claims. The practical consequences will be immense. Survivors of child abuse will no longer have the difficult—in fact, almost impossible—job of persuading the courts to overrule the limitation period and will have a right to raise an action regardless of the time that has elapsed.

As we have heard already from some of my colleagues, the Conservative Party agrees that cases of childhood abuse have unique characteristics that justify a special limitation regime. Those characteristics are derived from the horrible nature of the acts, the particular vulnerability of the victims and the effects of the abuse, which continue throughout the victim’s lifetime. Abuse at a time when a person is vulnerable and, perhaps, in a dependent relationship has been shown to have long-standing and severe adverse consequences. Mental health issues, incapacity, addiction, post-traumatic stress and self-harming behaviour often go hand in hand with a person’s having suffered such abuse.

The witnesses who support removal of the limitation period emphasised in their evidence the impact of childhood abuse on survivors and the length of time that it could take for a survivor to be able to bring a civil action. It is common for adult survivors to suppress abuse because of shame, guilt, fear or stigma—the so-called silencing effect. Furthermore, some survivors do not know or understand that they were subjected to abuse until many years later. It is widely recognised that child abuse often causes victims to hold back from telling others until well into their adult years. Those views were echoed by many witnesses, including Police Scotland, the Law Society of Scotland and—perhaps most harrowing—the survivors of childhood abuse whose private testimonies the committee heard.

I will highlight two slight concerns on which I would be interested to hear the Government respond. The first, which was raised by the Faculty of Advocates, is that litigation is inherently stressful and might place extra strain on victims and add to their suffering and anxiety if cases do not come to proof quickly. I appreciate that that may be an issue for the Lord President to consider, but it would be helpful if Parliament sent out a message that such cases should be dealt with as quickly as possible while also going through the appropriate judicial process.

In addition, it is important that there is appropriate support and advice for victims and survivors of childhood abuse. Will there be extra funding for third sector organisations or local authorities that provide such support? We need to ensure that that is in place.

The second issue on which I would like to hear the Scottish Government’s view is, perhaps, one that has not been considered. Given that we are going back decades, some organisations may face litigation because they have taken over other organisations in the meantime and if a claim is successful it might cause the current organisation real financial hardship, thereby preventing it from doing what it currently does that is positive. We have heard from Douglas Ross about that in respect of local authorities. I would be interested to know whether any protection can be given to third sector organisations that face litigation through no fault of their own, but because they have taken over other organisations.

That said, the Scottish Conservatives support the bill and its aims. I look forward to Parliament passing the bill, in due course. I hope that victims will feel that due process has been carried out.

15:46  

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

Like others, I welcome the bill, although I take no pleasure in the fact that we have had to come to a legislative solution to such a problem.

Some survivors that we spoke to made the point that not all of them are looking for a court solution and that there are some for whom there is no resolution. The issue is not just about institutional abuse, because the bill covers abuse by individuals perpetrated on individual children and in some cases the abuser is simply no longer around—they have died—and such closure cannot be given. I am grateful to the person in that position who came to tell their story. That was very emotional for the person concerned and for those of us who heard it because in such cases we cannot provide any way forward through legislation.

The courts are one way in which to get peace after suffering abuse. The Jersey process, which went farther back than 1964, but in very limited and different circumstances, was of interest to the committee because it provided a quicker way of dealing with some things and was perhaps a less stressful approach. There is scope for considering whether there are ways in which we can assist people through pre-action protocols and other non-court approaches. We should not yet discount such ways of helping people.

During our committee consideration I made a very brief reference to an issue that I have subsequently thought further about, which is whether there is further scope for our thinking about what is a child. A child is someone who has not reached the capacity of someone of more than 18 years old, but the description may also be held to reasonably apply to people whose calendar age is in excess of 18, but who have not got the capacity of an adult. I wonder whether there is an opportunity to ensure that we capture people of a greater age, but a more limited capacity, who have suffered exactly the same kind of abuse.

Paragraph (2) of proposed new section 17A of the Prescription and Limitation (Scotland) Act 1973 simply defines “child” as

“an individual under the age of 18.”

There might be scope for looking again at that. It is not something that the committee has considered in detail, so I will understand if we cannot see how we might move forward on that.

As we discussed in the committee, the bill is structured so as to make it clear that we must look at the circumstances of the abuse in the light of the legal and practical position at the point when the abuse took place. That is, of course, a difficult issue, because it almost means that we are endorsing abuse that we would now castigate in law, in practice and in our moral code, because it might not have been so castigated at the point when the abuse took place—post-1964, which is the period that is covered by the bill. I see no resolution that would enable us properly to address that.

There is also the issue to do with cases in which a nugatory financial settlement was made—perhaps £1, although it is fair to say that there seems to be no evidence of such nugatory settlements, so perhaps that is an academic issue. On the principal point, which is that there would be risks to the bill’s legitimacy as a whole if provision were made to reopen cases in which a financial settlement had been made, I think that I have ultimately been convinced—I was not initially convinced—that the bill is cast in the right way.

The bill is very simple, in that it covers two sides of paper, but the complex legal issues that it covers are much more substantial than is suggested by the limited number of words in it.

Members mentioned the financial memorandum and the uncertainty about the number of people who are involved. I think that the minister’s response to the committee was simply that there are other views, which is correct. All the views that can be expressed by various people are no more than that—views. No one actually knows.

We must rise above a rather pointless debate about numbers and say that this is a principled matter and that we wish to support people who have suffered childhood abuse. We simply have to deal with the practical effects of that when we come to them, while making proper initial provision to cover what we think is a middle-point estimate. Let us not imagine that we can keep looking at the numbers and find a magic, certain answer—I am convinced, as I think others are, that there ain’t one to find. We do this as a matter of principle, not as a matter of money.

15:52  

Johann Lamont (Glasgow) (Lab)

I am grateful for the opportunity to participate in this debate, and I thank everyone who had a role in getting us to this stage, whether it is the ministerial team or the committee and others who contributed to what is a thorough report.

This is an important stage in the long journey of confronting the reality of child abuse, addressing the needs of those who suffered in the past and reaffirming our wish to do all that we can to eradicate child abuse, protect young people and secure justice for all those who have been abused in the past.

In recognising progress, we should of course be alive to the continuing hurt of those who remain excluded because the abuse happened before 1964. We should also salute the survivors—some are in the public gallery today—who, despite the trauma of their experience, have spoken up and spoken out, giving voice to those who were silenced in the past and demanding justice for the past and action to protect those who might be at risk, right now and in future.

This is a day on which to reflect on the progress that has been made and to resolve to continue in the search for justice, so that we bring out into the light of day a scourge of our society, which went too long without even the words to describe it, with people silenced in their suffering.

The bill reflects progress, and we should be optimistic about that. It represents a change in attitudes to and understanding of the causes and consequences of child sexual abuse. We know that for survivors of abuse, their experience was one of not being heard or believed. That was all too common. The experience was compounded by the reality that justice was not possible, because of a time bar—a rule that seemed to have been wilfully designed to reinforce the message that people had experienced all too often as children, which was that their abuse did not count. The time bar reinforced the message that their experiences were disregarded, and it silenced them, without any recognition that people were often silenced into adulthood by a suffering about which they could not talk and that had a massive impact on their health and wellbeing.

We live in times when revelations of abuse seem to emerge by the day. We hear of abuse in football, in sports clubs, by celebrities, in youth clubs and in churches. We see the progress, stumbling as it is, of the national inquiry into child abuse, which is revealing evidence of the absolute betrayal of young people, who were abused while in the care of the state. They were brought in to be protected and were abused more. We also hear of young people being abused as they were educated.

Some say that they are shocked by what has been reported about football, but the truth is that, as survivors will tell us, although the individual experience that people report of their abuse is shocking, it is ultimately not surprising. That is because abuse is defined not by category or location but by the opportunity for abusers to abuse—to use their power against those without power. That is why active child protection measures are of such importance wherever our young people are. It is particularly welcome that the Government has recognised that in the bill and has provided rights for all survivors of abuse.

We should take the opportunity to reflect on how we tackle child abuse. The development of the strategy on domestic abuse and violence against women more broadly was underpinned by the three Ps of prevention, provision and protection. I ask the minister to confirm that the Scottish Government will commit to taking that approach to child abuse. It is essential that work on prevention is given a high priority and that we educate our young people and adults to be vigilant so that they know that it can happen and can find a way of speaking out if it does. Of course, that preventative work needs investment.

It is also essential that there is effective provision for survivors of abuse and an awareness of how that trauma is experienced and can be tackled. I urge the Government to resist the temptation to see support in only medical terms and to give proper recognition to the groups and organisations with a proven record in providing support that is shaped by the needs and wishes of survivors. The solutions are not only clinical—there are solutions that have been developed over time alongside survivors, and they must not be lost to us.

We recognise the steps that are taken through the bill to protect young people from abuse in future by giving a strong message that such abuse is a crime and that there will be criminal and civil remedies. The bill and the Parliament’s concentration on the issue send a powerful message that child abuse is unacceptable. They speak powerfully to the importance of protecting people by creating an understanding that there are consequences for those who seek to perpetrate abuse.

I urge the Scottish Government to work with survivors and to recognise their achievements and the progress that they have already secured, no matter how difficult that has been. I ask the Government to work with the cross-party group on adult survivors of childhood sexual abuse, whose campaigning work brought about the first successful survivor strategy and a focus on this important issue. We would welcome a commitment to an effective survivor strategy with a ministerial focus on that work.

We should acknowledge that the journey continues to be difficult. In the film “Hidden in Silence”, which was screened last night in the Parliament, a survivor of abuse said—I apologise if I paraphrase—“I do not see myself as a victim. If I say I am a victim, I continue to blame myself. I am a survivor who wants to move on with my life.” The bill seeks to support survivors in getting on with their lives, certain that they are being heard and with their right to justice confirmed. I am grateful to the Government for introducing the bill, and I welcome the work that will be done to support the needs of survivors as the bill continues its progress. [Applause.]

The Deputy Presiding Officer

I ask those in the public gallery not to show pleasure or otherwise while they are sitting there. Thank you.

15:59  

Mairi Evans (Angus North and Mearns) (SNP)

The Limitation (Childhood Abuse) (Scotland) Bill is a strong and necessary step towards achieving justice for the survivors of child abuse in Scotland. I agree with Johann Lamont’s point about our use of language such as “victim” and “survivor”.

I will demonstrate why the removal of the limitation period, or the time bar, in civil action cases relating to child abuse is a vital step and what the bill needs to include.

I echo what we have heard from members across the chamber: the current law does not recognise the innumerable reasons why someone might not come forward about childhood abuse by the age of 19. In its evidence to the committee, Victim Support Scotland outlined some of the reasons why survivors might not come forward. It takes some people years to realise that their experiences were abuse and many will not yet have come to terms with it.

To keep their victims from talking about what happened, abusers use silencing tactics that are effective years into the future, even when that person is no longer under the direct influence of the abuser. Shame, fear of authority and the stigma associated with the events are all reasons why a survivor of childhood abuse might not come forward and take civil action in the current period of limitation.

The limitation period punishes those who have survived such trauma by, in effect, not allowing them the time to come to terms with what they experienced. The committee heard direct evidence of that when we met a survivor of childhood abuse who shared her harrowing experience with us. She spent most of her early life in foster care and had been systematically abused by her own family, her foster family, in a children’s home and by a professional who worked with children. She carried with her a constant guilt and started the incredibly long journey towards addressing what had happened to her only years later when she sought help for depression. She spoke to a health professional who identified the potential cause of the feelings that she was experiencing. Her brother who had been in care with her had committed suicide, which she said might not have happened if he had known that this remedy was coming along. In a note to the committee she wrote:

“Abuse of power is a mental trap for the victim. It can take many years if not a lifetime to find our true being.”

That is why the bill is vital.

The current law allows courts to use discretion and permit a case to proceed even if it would normally be limited. However, that discretionary ability has been used only once in the 44 years since the law was enacted in 1973. The Government’s policy memorandum notes that the way in which judges have used that discretionary ability has created an “insurmountable barrier” to justice for victims of childhood abuse.

A number of organisations commented on that in their written and oral evidence to the committee. The Scottish Human Rights Commission highlighted a judgment that said:

“the legislation and the strict way the courts have interpreted it has failed a generation of children who’ve been abused”.

There has been no cognisance or understanding of the legitimate reasons why some cases simply could not have been brought within three years.

There is no confidence in the use of discretion, which has been borne out in the number of cases presented since 1973. The bill is essential to give survivors the confidence to bring cases forward.

One area of the committee’s report that I hope that the Government will take into consideration concerns what constitutes abuse and how broad or restrictive the definition should be. I will focus specifically on the inclusion of neglect. As the bill is drafted, childhood abuse covers sexual abuse, physical abuse and emotional abuse, with neglect omitted on the ground that it could

“become problematic by broadening the scope [of the bill] beyond what was intended.”

The Government noted that some types of neglect could equal abuse and argued that it would fall under the label of emotional abuse. Although I fully agree that we should not attempt to create an exhaustive list of actions that could constitute abuse, I think that neglect is a category of abuse that is separate from the current definition.

During one of our evidence sessions the representative from the Scottish Human Rights Commission strongly encouraged the explicit addition of neglect in the definition of abuse to bring the bill into line with international human rights standards, which clearly list neglect as a separate category. The inclusion of neglect in the definition would not change the substantive law regarding the proof that is required by the victim or pursuer to win the case but, as COSLA also noted, it could give more certainty to victims of an abusive form of neglect who wish to come forward. I urge the Scottish Government to consider including neglect in the definition of abuse. Neglect can manifest itself differently from a form of emotional abuse, and not explicitly including it could add more doubt to victims who are struggling to come to terms with what they went through.

Disposing of the limitations on childhood abuse civil cases is a huge step to help the generations of survivors of childhood abuse on their journey to recovery, justice and, perhaps for some, a form of closure. I commend the Scottish Government for taking that step and for introducing the legislation.

The bill has the general support of the Justice Committee, of a number of key organisations and, most important, of the survivors whom it will most affect. The bill will not be able to right all the wrongs for those who suffered childhood abuse and it certainly will not be the answer for everyone. From here on in, it is vital that survivors receive the support that they need if they are looking to take forward an action, and that the survivors of abuse that took place prior to 1964—currently inhibited by the law of prescription—are also provided with adequate paths to justice.

16:06  

Liam McArthur (Orkney Islands) (LD)

I start with an apology to the Presiding Officer, the minister and MSP colleagues as I need to catch a flight back to Orkney this evening and will be unable to stay to the conclusion of the debate.

I confirm that Scottish Liberal Democrats strongly support and will vote in favour of the general principles of the bill. Having consistently, with others, made the case for such a measure, we warmly welcome the Government’s decision to introduce that very short, but crucially important, piece of legislation.

The bill does not stand in isolation and the Scottish Human Rights Commission was right to remind us how it fits in a wider context of efforts to ensure that survivors of historical childhood abuse have access to justice and effective remedies, including through the Apologies (Scotland) Act 2016, the national inquiry and the survivor support fund. Nevertheless, the bill represents an important milestone, which will have practical and symbolic significance.

Before touching on the detail of the bill and some of the areas in which improvements are still needed, I thank committee colleagues, clerks, SPICe and all those who gave evidence to our committee. It is not an easy or comfortable issue to address, but we were fortunate in the candour and sensitivity with which the evidence was presented. Much of it was compelling but, without doubt, the evidence that hit home the hardest was that from survivors. As others have done, I offer special thanks to them for showing the strength and courage to share their experience and insights, and to say what the bill means to them.

In the company of a survivor, it does not take long to understand very clearly why the changes to the law are essential. It is estimated to take, on average, 22 years for a survivor of childhood abuse to be in a position to feel able to talk openly about what they have suffered and, for some, that point never arrives. That silencing effect goes to the heart of why a new approach is needed.

The courts already have discretion to set aside legal limitations in such cases, but in practice—as we heard repeatedly in committee and again this afternoon—that discretion has scarcely been used. Therefore, the bill offers greater clarity and certainty to those who take the difficult step of bringing a civil case about what they can expect. As the committee concluded, simply providing further guidance to the courts on how discretion should be applied would not achieve that.

Taking forward a civil action is not an easy option. The testimony that we heard in public and in private sessions underscored the imperative for ensuring that survivors have access to the widest possible support and advice. I am pleased that the minister recognised that in her written response to the committee, although—as Claire Baker said—it would be helpful to have a bit more detail about the type of support that is likely to be available.

Definitions were another issue that was considered by the committee. I very much welcome the decision to broaden the scope of the bill to cover not only those who suffered abuse in a care setting. Under human rights law, the vulnerability of the pursuer who was a child at the time of the abuse is the critical determining factor, not where the abuse took place. Also helpful is the fact that the definition of abuse has been expanded to include not just physical and sexual, but emotional abuse. Like Mairi Evans, I think that the bill needs to go further still to bring it into line with international human rights law standards with an explicit reference to neglect.

Clearly, the retrospective application of the legislation is fundamental to the bill achieving its objectives. By and large, I think that the right balance has been struck, including the difficult decision not to overturn the substantive law of prescription. However, as I said to the minister earlier, I have some misgivings about permitting cases disposed of by decree of absolvitor to be reraised. I entirely accept and support that we must ensure fair treatment for those who have tried to bring actions in the past, but who were time barred. In cases disposed of by decree of dismissal that seems relatively straightforward. However, by also opening up cases disposed of by decree of absolvitor, I worry that we may be setting a dangerous precedent, albeit with the best of intentions. The minister said in a written response:

“Given the uniqueness of this category, it will not set a precedent for future categories of claims.”

The basis on which such an assertion can be made is difficult for me to understand.

Finally, let me offer a few thoughts on the financial aspects of the bill, which also raised concerns among those from whom we took evidence. In truth, as Rona Mackay rightly pointed out, no one can know for certain the number of cases that are likely to be brought, or indeed the nature and extent of the support that survivors might require in pursuing claims. Of course, some will opt not to go down a legal route, but many will. Police Scotland’s evidence pointed to a number much higher than the 2,000 or so projected in the bill’s financial memorandum. Meanwhile, we heard suggestions that one law firm already has 1,000 clients on its books. Knowing, as we do, the pressure that our court service and staff are already under, I feel that we should not underestimate the potential risks.

Likewise, as Jeremy Balfour reminded us, we heard evidence about the risk that some organisations that are vital to providing support and care to vulnerable young people today could themselves be liable for large claims. That, in turn, would put the services that they provide under threat. None of that is easy, nor is it an argument against the approach that is laid out in the bill. However, in addressing the failures of the past, we must guard against creating the conditions whereby they can be repeated in the future.

Let me give the final word to one of the survivors we heard from. Mr Aitken said:

“It will have a dramatic impact on the lives of ... the thousands of survivors in this country who have suffered the most terrible and horrific abuse. They are still suffering from that abuse to this day. ... As they grow older, every survivor loses resilience and resource, and the effects of the trauma that they suffered in childhood surface. ... In many cases, they end up in hospital, the criminal justice system or prison. Worst of all, there are friends of ours who have suffered so badly that they have taken their own lives.”—[Official Report, Justice Committee, 21 February 2017; c 3-4.]

The bill may not be a panacea, but I look forward to Parliament agreeing its general principles this evening.

16:12  

John Finnie (Highlands and Islands) (Green)

I say at the outset that the Scottish Green Party will be supporting the general principles of the bill at decision time tonight. As a member of the Justice Committee, I, like others, convey my thanks to the many people both within and without the Parliament who have brought us to this point, with particular reference to the Scottish Human Rights Commission and the action plan that it drafted.

A lot of people have touched on points that are worthy of repetition, including the importance of the removal of the limitation period—the time bar, which generally requires that civil actions must be raised within three years. Everyone has rightly said that the policy is about improving access to justice and addressing barriers. It is fair to say that it is part of a package, in that not all barriers to justice are legal or have a legal remedy.

There has often been discussion in the chamber about how changing the law for a single category of claims can have unintended consequences. The minister addressed that at the outset by saying that it is about striking a balance, and I think that the balance has been properly struck. The bill will have retrospective application and I hope that that will address the silencing effect, which has not been appreciated.

We know that the Scottish Government considered the wider rights aspects of the matter and had to find a special justification for bringing the bill forward. It is certainly my view that childhood sexual abuse has unique characteristics, which have been touched on by other speakers, and that those characteristics—the abhorrence of the acts, the vulnerability of the victim and the effect of the abuse—justify a special limitation regime.

Reference has also been made to some of the consequences of abuse—mental health issues, effective incapacity and post-traumatic stress. It is also important to say that all survivors are individuals and people are affected in different ways. We heard very powerful evidence about the insurmountable barrier that victims face at the moment.

We heard about section 19A of the Prescription and Limitation (Scotland) Act 1973, which provides—as other members mentioned—for discretion in overriding time limits. Under the act, the court retains the discretion to allow an action to proceed

“if it seems to it equitable to do so”.

However, we have seen from the statistics that that course has never—bar one occasion—been followed. Indeed, the onus is on the pursuer to show that justice requires action to be taken. It was suggested to the committee that the judiciary has been conservative—I stress that that is with a small c—on that aspect.

I would like to touch on the private evidence that we heard. Members will understand that a large measure of confidentiality attaches itself to the process as a result of the need to respect individual privacy. The experiences that we heard about, and people’s views on the bill, informed us greatly in our consideration.

I heard from the same gentleman to whom Stewart Stevenson referred; he was abused not only by individuals but in the public system by various groups. He was passed around carelessly and callously, and finally abandoned, in the system. It was a humbling experience to listen to him. I have great respect for, and I am grateful to, all the individuals who came forward to speak to us, not least because some, as we know, will not necessarily benefit from taking the route for which the bill provides.

I am always concerned about human rights, and even more so if they are extinguished. The Scottish Government stated that it had considered whether anything could be done to “revive the rights extinguished” in respect of abuse that occurred prior to 1964. The Justice Committee has asked the Government to look at other options for redress that could be made available to the group in question.

Members talked about the expectations that have been raised; the impact on the Scottish Courts and Tribunals Service, which the committee report also picked up on; and the potential adverse impact on the ability of the third sector to provide support. Again, the committee has asked the Government for input in that respect. We do not know what the numbers are, and it is not necessarily helpful to speculate.

We heard that the passage of time, and the poor quality of evidence and potentially missing evidence, could lead to unfair trials. I roundly reject that suggestion. It is certainly the case that witnesses may be dead, incapacitated or untraceable, and that key documents may have been lost or destroyed. As some of us will know from our constituency work, getting information can be a challenge. However, we know that criminal offences are not subject to any limitation period, and the passage of time has not prevented Police Scotland from doing excellent work, with support from the statutory agencies, third sector support groups and a dedicated unit in the Crown Office and Procurator Fiscal Service, to prosecute historical cases successfully. Each case is dealt with on its individual merits, but it is important to point out that a higher degree of proof—beyond all reasonable doubt—applies in criminal cases. There is a lower threshold—the balance of probabilities—for civil litigation.

In the short time that I have left, I reiterate the comments from other members on the inclusion of the term “neglect” in the definition of abuse. The use of such terminology is consistent, as we have heard, with domestic and international law and with the United Nations Convention on the Rights of the Child, which is an important factor.

I have learned the phrase “decree of absolvitor”, which I had not heard before. The decree of absolvitor route is not for everyone. I also learned the phrase “legal certainty”. We want to leave survivors with the certainty that their position has been recognised, and that principle may be an avenue of redress for some survivors.

16:18  

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As a member of the Justice Committee, I support the bill, and I agree with other members that it will improve access to justice for survivors of historical childhood abuse. I thank the minister and the Government for introducing the bill, and I thank the convener and all the members of the Justice Committee for agreeing to the general principles of the bill in such a consensual and sensitive way.

In committee, we dealt with many of the technicalities of the bill—which other members have mentioned—and scrutinised it fully. We heard evidence from a number of people. As other members said, the most powerful evidence came from the survivors, whom I cannot thank highly enough for coming to committee and giving evidence. Although there are undoubtedly some shortfalls in the bill, for me, as a social worker and a socialist, it represents our continuing progression as a nation. It represents the fact that, as a country, we treat the issue of abuse with the utmost seriousness; that we acknowledge that we got things wrong for victims in the past; that we are on the right path towards truly tackling the issue.

It is absolutely right that the time bar should be removed for these types of horrible offences. Earlier this week, the chamber engaged in a debate on the rape clause, and many members who spoke—including Kezia Dugdale, who read out a letter from a woman affected—referred to the difficulties that people have in coming forward about rape and the fact that they often stay silent about it for many years. That is also the case with the sort of offences that the bill deals with. Through my experience in social work and through speaking to people from that fabulous charity the Moira Anderson Foundation, I know that many people do not speak out about childhood abuse until they are parents. As another speaker in this debate said, it is not uncommon for social workers, health professionals and others to have a parent of a family disclose their childhood abuse for the first time, after many years, when the reason for their initial engagement is something totally different.

Last night, I, like Johann Lamont and other MSPs, viewed “Hidden in Silence”, which is a powerful film that documents the trauma of two women from an ethnic minority background who were sexually abused in their childhood. One of them chose to speak out about her abuse to authorities, but the other did not. However, both came back to the issue after many years, and the film demonstrated through the contrasting approaches the difficulties that they had faced. I thank Margaret Mitchell, the convener of the cross-party group on survivors of childhood sexual abuse, for arranging the screening. I encourage all members to view the film when they get the chance.

I believe that the bill takes the steps that are needed to ensure that access to justice is available to survivors of historical childhood abuse. It is vital that we continue to explore the measures that can ensure that survivors of historical childhood abuse have the support and means to deal with the effects of that abuse. At present, individuals are not able to bring personal injury cases to civil court after a time limit of three years, including for side effects such as post-traumatic stress disorder, anxiety and depression. Survivors currently face barriers in attempting to access the civil justice system to bring a civil action against their abusers. Although it is impossible ever to remove the damage and hurt caused by abuse—I think that everybody has recognised that—removing the time limit for cases means that those who suffered historical abuse while in care, or outwith care, can now have access to a further means of justice. They might take some comfort from that and be able to have their voices heard.

As we heard from the Justice Committee, the bill is not designed to be a solution for all survivors, but we must ensure that support for survivors is always available in varying forms. Civil action will not be for everyone, but I believe that it should still be an option and that we should have measures in place to ensure that it is accessible to those who choose that route.

I am glad that the bill is all-encompassing, regardless of where abuse takes place. That could bring in those affected by historical abuse in football, for example, to which Johann Lamont referred. Just yesterday, the local media in my area reported on the fairly high-profile case of an individual originally from my constituency who has now been convicted of sexually abusing several victims over 40 years ago. Previously, a case involving him had failed to result in prosecution in the 1970s because of a lack of evidence, but he has now been found guilty of four serious sexual offences. The individuals concerned now have further options open to them, if they wish to take them.

Does the bill go far enough? Maybe not, but it is a start and it puts us ahead of many other countries on the issue of historical childhood abuse. Should there be any reason for not passing the bill? Of course not. The bill’s purpose is to bring justice to some of those who were abused and give them a voice. I believe that we should make further provision for those who were affected pre-1964. However, as I said at the start of my speech, the bill represents more, because it is a statement from a bold and progressive Government. The bill is part of a journey, and I am confident that there will be further developments as we move forward. I am delighted that the Justice Committee has agreed to the bill’s principles and I urge all in the chamber to agree the motion in the name of the minister.

16:23  

Gordon Lindhurst (Lothian) (Con)

For the avoidance of doubt, I refer members to my registered interest as a practising member of the Faculty of Advocates.

I welcome the Scottish Government seeking to address the unfortunate issue of childhood abuse past, present and future. As the policy memorandum that accompanies the bill makes clear—it has already been referred to—one of the reasons for pursuing the bill is that the social taboo that has long been attached to childhood abuse has added to survivors’ reluctance to come forward.

It is important that the law and the legal system should be a facilitator of and not a barrier to justice for survivors. As evidence before the Justice Committee has indicated, and as is set out in the committee’s report, the limitation period can pose a particular difficulty for victims of childhood abuse. The discretion that is set out in section 19A of the Prescription and Limitation (Scotland) Act 1973 is not often exercised, and it is against that background that the new provisions for the 1973 act are proposed.

The committee’s support for clarification and improvement of that law is to be welcomed. At the same time, the committee has rightly raised a number of matters that require further consideration and attention. Although they may be thought at first sight to be matters of mere detail, on closer examination it is clear that they merit greater scrutiny.

As someone who is not a member of the Justice Committee, I commend it on its thorough and thoughtful approach to the bill and on the fairly comprehensive report that it has prepared. I say “comprehensive” but I know, as a lawyer, that inevitably something will not have been covered, although every issue that arose in my mind has certainly been covered. I encourage the Government to respond to the points that are raised in the report for further consideration. Some of them have been referred to in today’s debate, and l will focus on one aspect in particular.

That issue is the costs that may arise and which appear to be wholly uncertain, according to the committee’s report. There are a number of aspects to consider. The Government has sought to estimate the number of survivors who may seek to raise a civil action, but the report details a number of factors that could mean that that number rises significantly. An example is the role that claims management companies or personal injury lawyers play. A larger number of claimants than expected could mean that court costs rise, especially for complex cases. It is essential to take that possibility into account at this stage, in order that any required changes are made so that the bill is effective in ensuring justice in a timely manner. Resources are key, as is a more accurate picture of the number of cases that are likely to be brought.

Jeremy Balfour raised the issue of successor organisations in the third sector. Voluntary organisations that provide essential support services in society today may find themselves having to shoulder responsibility—financial and otherwise—for the unauthorised and unacceptable actions of individuals who previously worked for or with those organisations, sometimes decades before. Such an organisation might not have had insurance at the time or might have an insurance policy that does not indemnify it against such claims, or its insurance provider might no longer exist. An organisation could face dissolution in order to meet a claim. In such circumstances, how can we ensure that essential work that the third sector does is not lost as a result of unintended consequences?

What of local authorities? How will all this further impact their ability to deliver services? They are likely to face similar issues. That question has already been raised today, and it was raised before the Justice Committee by COSLA. A number of concerns that are raised in the committee’s report relate to the potential for a higher percentage of claims to be against local authorities because they provided the majority of children’s services. No estimate is available at present of the costs that local authorities could face. The main insurance provider for them between 1975 and 1992 ceased operations in the 1990s. Insurance premiums that cover such matters now could rise significantly as a result of the bill.

I emphasise that those are not reasons to vote against the bill and its purposes; rather, we must ensure that the bill will not have unintended consequences that are desired by no one. It is clear that assistance must be given to all survivors so that they can assess for themselves which solution they want to follow, whether through the court process or by other means, and that the bill has support across the chamber.

I look forward to a detailed response from the Government to the areas of concern that the committee identified, particularly in relation to resolving potential unintended and undesired consequences of the bill, which I have briefly sketched.

16:29  

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Like Gordon Lindhurst, I refer members to my voluntary entry in the register of interests, in which I state that I am a non-practising member of the Law Society of Scotland.

I commend the Government for introducing an important bill. Like other members, I commend fellow members of the Justice Committee, and Margaret Mitchell for her stewardship during the bill process. The way in which the committee worked collaboratively and constructively on the bill demonstrated the strength of the Scottish Parliament’s committee system when members and parties work together on matters of importance.

Like other members, I thank witnesses from organisations who gave evidence and, in particular, the survivors who gave evidence in private. The experience of taking evidence from the survivors was incredibly moving and upsetting for all of us. I was struck not only by their powerful evidence on their determination to seek justice and the harrowing experiences that they had gone through, but by the sense among the survivors to whom I spoke that the bill has already started to give important recognition to their suffering. Although we absolutely should focus on the bill’s technicalities and practicalities, we should recognise that a process of justice has already begun because of the fact that the bill is being discussed here, in the Scottish Parliament.

Like all members of the committee, I welcome the bill’s aim of improving access to justice for survivors of horrific historical abuse and I endorse its general principles. By removing the three-year time limit on victims of childhood abuse bringing a civil action against the abuser, we are creating not a panacea but an important choice for survivors. In the current system, as Kim Leslie of the Law Society said, it

“does not square ... that there is no such time limit for a criminal prosecution.”—[Official Report, Justice Committee, 28 February 2017; c 9.]

An individual case cannot be prosecuted after a lengthy time when it comes to a civil matter. The bill will—rightly—address that injustice.

I will pick up on two particular points. The first concerns cases in which abuse occurred before 1964 and the other is about the definition of emotional abuse.

The Government gave serious consideration to prescription and cases in which abuse occurred before 1964, and I am glad that it did. It was clear from the oral evidence that the committee took that, in the view of witnesses, the Government had struck the right balance. The Faculty of Advocates said that there could be a “potential challenge” to the bill if prescription was sought to be extinguished. Like Margaret Mitchell and Mairi Evans, I urge the minister to address what other redress measures can be made available to those who were abused before 1964.

Many of the points about the definition of emotional abuse have been covered by other members. I support the inclusive and non-exhaustive definition of abuse. However, in oral evidence, Laura Dunlop QC, who represented the Faculty of Advocates, said:

“It is open to the courts to develop the concept of abuse—in particular, emotional abuse”.—[Official Report, Justice Committee, 28 February 2017; c 15.]

Will the Government comment on whether guidance on the definition of emotional abuse would be useful, particularly given that the committee has asked the Government to respond to uncertainties about the term? Spiritual abuse and psychological abuse were both raised in the committee.

I support what members have said about neglect and, in the interests of time, I will not expand on that.

As members have said, it was emphasised to the committee that the bill is not a panacea, and I share that view. However, I finish by quoting Harry Aitken, who gave evidence in one of our first sessions and represented Former Boys and Girls Abused in Quarriers Homes. He said:

“The significance of the bill is that, at long last, survivors will have the choice. That element of choice has been denied to them up until now ... they will already have heard that it will be a difficult task for them to go to court. They will have to have a robust case, that case will be cross-examined and it will have to stand up to the normal practices of the legal system. However, having made that choice and found the courage to go forward, I believe that that will fortify them.”—[Official Report, Justice Committee, 21 February 2017; c 5.]

We should support and pass the bill to help to fortify survivors—as Mairi Evans powerfully said—on their journey to recovery, in the interests of justice and to seek the closure that they so rightly desire.

The Deputy Presiding Officer

We now move to the closing speeches. I call Mary Fee.

16:35  

Mary Fee (West Scotland) (Lab)

In closing for Scottish Labour, and as our member on the Justice Committee, I thank all the individuals and organisations who assisted the committee to produce this stage 1 report on the Limitation (Childhood Abuse) (Scotland) Bill. I praise the outstanding bravery of the survivors of childhood abuse who gave the committee a very powerful insight as to why this bill is needed.

I commend everyone who has taken part in the debate for maintaining a respectful and calm atmosphere as we discuss highly sensitive and emotive issues. Contributions from members across the chamber today indicate that this legislation is, rightly, a priority that all of us share.

The Limitation (Childhood Abuse) (Scotland) Bill will enable many survivors of childhood abuse to make the choices that they need to make, to seek appropriate reparations for the abuse that they suffered. The reasons for introducing the bill are sound and I support the Government in its aims. The Justice Committee report supports the general principles of the bill. Like the committee, I have a few reservations about some small technical details. The recommendations of the report are well researched and well thought out, and I will touch on some of them in order to raise with the Government how we can work together to find the right outcomes for survivors of childhood abuse.

The current three-year limitation period is, as we have heard, a barrier to seeking justice that the bill will overcome. That was agreed by the committee and the majority of those who presented evidence to the committee. Removing the current time bar will enable survivors to exercise their rights and bring a civil action against an offender. That may not be the right option for all survivors, as we heard in evidence sessions and in the chamber today. However, very importantly, it will give survivors further choices.

During one of our evidence sessions, Laura Dunlop QC pointed out that the process of bringing an action could, in some cases, do “more harm than good” because of the significant emotional impact of speaking about their abuse and reliving the trauma. That is why I believe that we must ensure that support is available for survivors to make the right decision.

The Scottish Human Rights Commission also highlighted that there would remain a

“necessary or significant evidential burden”

for survivors in raising this through the court and identifying the offender. In supporting survivors, we help them to make the right individual choice and, as the committee report states,

“this could help to manage survivors’ expectations about what can be achieved”.

The minister advised the committee that steps would be taken to ensure that support is available and, as others have raised in the chamber today, I look to the minister for further detail of that support.

On the definition of abuse and the setting, the committee rightly welcomed the decision to allow action against abusers regardless of the setting in which the abuse took place. It would have been a further injustice to survivors to create a two-tier system that prevented some from seeking redress because they had been abused in a protected place, while others were able to take action.

As we have heard, in cases in which the abuse started before 1964, Scottish Labour is happy to work with the Government and people across the chamber to find some form of restitution.

During the evidence sessions, other options were proposed. However, we would like a model that would fit not only Scotland’s needs but, far more importantly, survivors’ needs. The Scottish Government must work with survivors, listen to their needs and find the most suitable solution for them.

I recognise that there were mixed views on the inclusion of neglect within the definition of abuse. However, the inclusion of neglect would mean consistency with other domestic and international laws and, as argued by Detective Chief Superintendent Lesley Boal, would be a deterrent to such behaviour. I support the inclusion of neglect and welcome the commitment from the minister to consider the issue further.

On the financial implications that were highlighted by COSLA and third sector organisations, there are serious concerns that the backroom costs will impact on the resources that are available for current services. Although we wholly support the Government’s aim of widening access to justice for survivors, we need more information on how the Government will deal with the financial implications. I welcome the minister’s acknowledgement of the fact that there is great sympathy for local authorities, charities and third sector groups, and we look to the Scottish Government for information on how it plans to support those organisations.

We welcome this bill and praise the courage of the survivors, some of whom are in the gallery today, in contributing to the Justice Committee’s report and in campaigning to end the time bar that has denied them access to justice for too long. I confirm our support for the aims and provisions of the bill.

16:41  

Annie Wells (Glasgow) (Con)

I thank everyone who has spoken today and I give special thanks to those who gave evidence to the Justice Committee, especially the survivors, who spoke on such sensitive and personal issues. I will start by reaffirming my support and that of my party for the bill.

Widening access to justice for survivors of historical childhood abuse is the right thing to do. The very nature of the crime means that it is absolutely right to expect that it can take survivors many years to come to terms with what they have been through and to seek the justice that they deserve. Of course, the current law provides judges with the discretion to allow cases outwith the three-year limitation period to proceed but, as my colleague and convener of the Justice Committee, Margaret Mitchell, has stated, along with many other speakers, that discretion has virtually never been used.

We all understand the practical rationale behind the three-year time limitation on civil court claims. The longer the delay, the less concrete the evidence. The wider the window for potential legal cases, the more difficult it becomes for organisations to have the certainty and finality that is needed for day-to-day business as well as the security of knowing that there are no pending legal claims. Those are the reasons why similar time bars for personal injury claims exist in nearly all developed legal systems in the world. However, despite those practical concerns, we are unanimous that the time limitation for survivors of historical childhood abuse—whether sexual, physical or emotional—should be lifted so that survivors get the justice that they deserve.

Underpinning the bill is the unanimous recognition of the unique experiences of survivors of childhood abuse. Victim Support Scotland supports that idea, highlighting the length of time that it might take for someone to realise that they have been abused, and the silencing tactics that are used by abusers, as well as the feelings of shame, embarrassment and trauma that might prevent someone from coming forward for many years. The National Society for the Prevention of Cruelty to Children Scotland, through a piece of research involving 60 adults, found that it took a survivor an average of eight years to tell someone about their abuse. Therefore, I am pleased not only that the three-year limitation will be lifted but also that the law will be applied retrospectively, which means that the bill will apply to abuse that occurred as far back as 1964.

In line with what has been raised in the chamber today and was raised previously in the Justice Committee, there are, of course, considerations to be made as we look beyond our agreement on the bill’s general principles.

Although it is undoubtedly the right and moral thing to do, the committee highlighted what it saw as a conservative estimate by the Government of the number of survivors who could come forward. My colleague Gordon Lindhurst touched on that in detail, citing the difficulty in predicting such numbers and, therefore, in identifying the cost implications.

Local authorities and third sector organisations will be affected, as we heard when COSLA came before the Justice Committee. Although they very much support the bill, concerns were raised about its financial implications for local authorities and how such costs would be met with currently identified insurance policies. Furthermore, there are practical considerations for such bodies when it comes to giving evidence. How will such organisations answer questions on behalf of a defender—perhaps an ex-employee who has either passed away or long since left?

Douglas Ross spoke about the broader impact that the bill will have on the courts’ resources. What is the courts’ capacity to take on a number of new cases, an estimate for which we do not have, and how do we ensure that survivors are not deterred from pursuing cases because of lengthy and potentially avoidable delays?

I would like to touch on the more human aspects of the bill. As my colleague Jeremy Balfour suggested, pursuing a civil action will not be the right solution for all survivors. At times, the court process could do more harm than good—a point that was made by many members across the chamber. Jeremy Balfour also said that we need to consider the vulnerability of survivors and the long-standing effects that go hand in hand with abuse, such as alcohol and drugs misuse. We need to make sure that there is support there for the survivors. Furthermore, what potential action could the Scottish Government take to ensure justice in cases of abuse that occurred prior to 1964?

As Margaret Mitchell highlighted, given the overall financial resource implications of the bill, we need to ensure that current support services for survivors are not adversely affected by the bill. As other members have mentioned, last night, the cross-party group on adult survivors of childhood sexual abuse screened an extremely insightful documentary on the experiences of victims of childhood abuse from the black and minority ethnic community. In such cases, in which survivors already face vast sociocultural barriers to coming forward, we would seek to reaffirm support for the existing services.

In closing for the Scottish Conservatives, I reaffirm my party’s support for the bill. To rightfully acknowledge the unique case of childhood abuse victims, the three-year time limitation that is in place for civil claims should be lifted. Concerns exist over the bill’s implementation but, as long as we are realistic about what those are and what measures should be put in place early on, they will be manageable.

I hope for further scrutiny in the later debates, and I very much welcome the bill at stage 1.

16:48  

Annabelle Ewing

It has been a valuable and important debate, and I thank members for their speeches. Mary Fee was absolutely right to say that the tenor of the debate has been excellent and fitting for the subject that we are addressing.

I am pleased that members share the aim of widening access to justice for survivors of childhood abuse. Ben Macpherson was absolutely right to say that the key objective of ensuring justice for that group of people, who have been through so much, should not become obscured when we discuss the bill’s more technical provisions, important though those discussions are.

I am also pleased to note that there is support across the chamber for the general principles of the bill. I assure members that I have listened carefully to the points that have been raised and will give them full consideration. I will touch on some of the issues that have been referred to. If I do not have time to address them all, members should not hesitate to corner me and seek further clarification.

I am grateful to Mary Fee, Claire Baker and others for raising the issue of support for survivors. I agree that it is important that survivors be given the right support to make their decisions—whether it is a decision about whether to raise a civil action or about what support will be best.

I point out to members that, since 2017, more than £10 million has been distributed through the survivor support innovation and development fund to third sector and voluntary sector organisations. This financial year’s budget for the fund is £1.8 million. Furthermore, in May 2015, we announced investment of £13.5 million over five years to expand and enhance support for survivors of in-care childhood abuse through a dedicated support fund, which was relaunched this year as the future pathways fund.

As we have heard, decisions on civil actions are complex—that point was well made by Rona Mackay—and anyone who faces such a decision needs good-quality impartial advice and guidance. We are in active discussions with the Law Society of Scotland about how best we can raise awareness among solicitors of the very particular issues that are involved in such cases, and how they can be better equipped to support survivors. We are also planning an event, in conjunction with the Law Society, that will bring together the legal profession and professionals in survivor support organisations in order to ensure mutual understanding and sharing of knowledge. We, of course, remain committed to exploring what other forms of support can be made available.

On the definition of abuse, I am grateful in particular to Mairi Evans, Liam McArthur—who has had to leave us to catch his flight to Orkney—John Finnie and others for raising the question of how abuse should be defined in the bill. It is important to keep in mind, when we look at how abuse is defined elsewhere, that each definition is designed for its own purpose, so what works best in one context may not be the best approach in another. As I mentioned in my opening speech, it is important that the definition sends the right signal while avoiding, as much as is possible, unintended consequences. I listened carefully to the evidence that was presented to the committee and to the arguments that have been made today. As I said in my opening remarks, I will carefully reflect on them.

On the estimation of numbers, I note concerns about the impact of the bill and the estimates that we have made of the number of survivors who are likely to come forward. As members will have seen, we estimate that between 400 and 4,000 survivors may come forward, with the mid-point of 2,200 being considered to be the most likely figure. I accept that this is not an exact science; we simply do not know, and that is our position. We have used a variety of methods and looked at a range of sources. It is, of course, possible that more or fewer actions than that will be raised. It is clear, at this stage, that we do not know whether the estimates will be right or wrong.

All witnesses who came to the Justice Committee’s meetings accepted that the number will be difficult to predict. Nothing in the evidence indicates that there is a better estimate that should be used instead—a point that was well made by Stewart Stevenson. It may interest members to note that the Law Society says in a briefing for the debate that the likely impact of the bill has been adequately captured in the financial memorandum.

Reference was made to Police Scotland data. It is helpful to hear about the on-going work by, among others, Police Scotland. It is also important to keep in mind that the number of victims who are identified in police files is not the same as the number of survivors who will come forward to raise actions. In deciding whether to go ahead with an action, factors that will need to be considered include whether there is a solvent defender, whether there is sufficient evidence to prove the case and—perhaps key above all—whether the survivor is prepared to go through the often challenging court process. Not all cases that are identified by the police will translate into civil actions. Witnesses who gave evidence to the committee recognised the difficult task of estimating numbers and the great uncertainties involved.

On the potential impact on local authorities, third sector organisations and their insurers’ finances and resources—which several members have raised this afternoon—I acknowledge that costs might go beyond the costs that are directly associated with defending against actions. However, as we set out in the financial memorandum, it is not possible at this time to estimate what the impact will be.

The bill’s general principles are supported by COSLA and many third sector organisations. I will continue my engagement with COSLA; in fact, I recently met Councillor Stephanie Primrose, who is COSLA’s spokesperson for education, children and young people. We agreed that the best way forward is to continue our dialogue and that we should not rush ahead and draw conclusions before the facts of the matter are known, so we will carefully consider evidence on the impact of the bill.

Annie Wells—I think—made the point that no estimate has been made of the impact on courts. I refer her to the financial memorandum, in case she has not had time to read it, in which we provide a gross cost estimate of £280,000. [Interruption.]

The Deputy Presiding Officer

Excuse me, minister.

I ask members to have a bit of courtesy and be quiet. An important discussion is going on with the minister.

Annabelle Ewing

Thank you, Presiding Officer.

It is important to keep it in mind that not all people will pursue an action. That is absolutely a decision for the survivors themselves. It is important to bear in mind the fact that, if survivors decide that they want to take that route, not all the actions that are raised in court will be raised at exactly the same time or be of exactly the same length. It is also important to remember that many actions settle out of court. The Government will, of course, continue to have discussions with the Scottish Courts and Tribunals Service and the situation will be continuously reviewed.

Reference was also made to the fact that one particular law firm might have a significant number of cases. That example was raised in committee as well but, of course—[Interruption.]

The Deputy Presiding Officer

Excuse me again, minister.

I ask members to be courteous and quiet. Thank you.

Annabelle Ewing

Thank you, Presiding Officer.

Reference was made to a law firm having, I think, 1,000 potential cases on its books. It is important to recognise that not all those cases might be reraised. Again, that goes back to the choice of the survivor. We should not seek to usurp that choice in any way; it will be entirely a matter for each survivor to determine for themselves. Although we cannot predict exactly how many actions will be reraised, it is likely that not all cases will end up in the courts.

I will clarify again proposed new sections 17C and 17D of the 1973 act. With regard to section 17C, I return to the decree of absolvitor, which some members raised. I think that members will be surprised to find that they are becoming, as John Finnie suggested, legal experts on our civil procedure. However, it is important to recall that whether a decree of absolvitor was the most appropriate disposal for the actions would have been a matter for the parties who agreed the settlement. The fundamental point is that those cases did not receive an adjudication on their merits. For the sake of completeness, it should be noted that, in current Scots law, a decree of absolvitor is not an absolute in any event. There is the possibility of new evidence being brought forward under the res noviter procedure—albeit that that is extremely rare.

Some members, including Johann Lamont, referred to wider issues for survivors. As we have heard, raising a civil action will not be the solution for all survivors. A number of strands of activity are currently under way, including work that the centre for excellence for looked after children in Scotland—CELCIS—is doing with survivors directly on framing further engagement, and on consultation on financial redress. That work will consider the position of in-care survivors who were abused before September 1964. That process is being led by CELCIS and the interaction action plan review group, and it will fully explore issues around redress and gather a wider range of views.

I thank, once again, all the members who contributed to the debate. It has been an engaging and meaningful debate that has raised a number of important issues. I am pleased to reiterate that there is support across the chamber for the principles of the bill. That is a very important signal that Parliament can send to the survivors who have been through so much, and to whom we have paid tribute for their bravery and determination to ensure that their voices were listened to so that they could get the justice that they have been seeking.

It has been an important and useful debate. I will reflect carefully on the issues that members have raised, and I look forward to further progressing the bill.

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-03812, on the financial resolution for the Limitation (Childhood Abuse) (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Limitation (Childhood Abuse) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Michael Matheson]

The Presiding Officer (Ken Macintosh)

There are two questions to be put as a result of today’s business. The first question is, that motion S5M-05290, in the name of Annabelle Ewing, on the Limitation (Childhood Abuse) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Limitation (Childhood Abuse) (Scotland) Bill.

The Presiding Officer

The final question is, that motion S5M-03812, in the name of Derek Mackay, on the financial resolution for the Limitation (Childhood Abuse) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Limitation (Childhood Abuse) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

Meeting closed at 17:00.  

The Deputy Convener

Agenda item 2 is consideration of the Limitation (Childhood Abuse) (Scotland) Bill at stage 2. I ask members to refer to their copy of the bill and to the marshalled list of amendments.

I welcome the Minister for Community Safety and Legal Affairs and her officials, and I apologise for the short delay.

Section 1—Removal of 3 year limitation period in certain actions

The Deputy Convener

Amendment 1, in the name of the minister, is in a group on its own.

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

Good morning, deputy convener. Amendment 1 will ensure that there is no doubt that abuse in the form of neglect is covered by the definition of abuse in the bill. The existing definition did not exclude forms of abuse such as neglect, but the amendment will put matters beyond doubt.

I am grateful to the committee for its scrutiny of the issue and to those who gave evidence. I agree with the witnesses about the importance of being as clear as possible, and of making every effort to ensure that no survivors for whom the bill is intended are excluded from its benefits.

It is clear from the evidence that abuse in the form of childhood neglect can cause serious long-term damage and give rise to the sort of difficulties that prevent survivors of other forms of childhood abuse from coming forward to raise civil actions. At the consultation stage, concerns were raised about whether there was potential ambiguity in including neglect, and about the potential for a wider interpretation that would include negligent acts that would not necessarily constitute abuse. However, under amendment 1, only neglect will be included as a form of abuse, which makes it clear that the bill does not deal with cases in which a person has simply omitted or neglected to do a thing. At the same time, the amendment will remove doubt as to whether actions arising from childhood abuse that takes the form of neglect could benefit from removal of the limitation period in the bill.

I move amendment 1.

Stewart Stevenson

Very simply, I welcome amendment 1, which has been lodged in response to observations from the committee. For my part, I find it very easy to support.

Liam McArthur

The minister is right that an argument could be mounted to say that neglect is covered in the existing wording, but as we have discussed and as we have heard in evidence, the bill’s giving clarity to survivors is absolutely crucial, and amendment 1 will deliver that. We heard that pretty strongly in the evidence—in particular, in evidence from the Scottish Human Rights Commission. I record our gratitude to the commission for that.

Like Stewart Stevenson, I will have no difficulty in supporting amendment 1.

The Deputy Convener

I echo those remarks.

Amendment 1 agreed to.

Section 1, as amended, agreed to.

Section 2—Commencement

The Deputy Convener

Amendment 2, in the name of Douglas Ross, is in a group on its own.

Douglas Ross

Amendment 2 aims to ensure that the bill is properly resourced. The committee’s report on the bill contains at paragraph 245 a recommendation that was unanimously agreed by all members of the committee. It says:

“It is important that the Bill is properly resourced to ensure both that its policy intent is achieved and to prevent any negative impact on the provision of current services by local authorities.”

By agreeing to amendment 2, we will ensure that that is in the legislation.

I move amendment 2.

Stewart Stevenson

During the stage 1 debate on the bill, Mr Ross supported the aims of the bill. He said:

“It is paramount that survivors who have previously been unable to raise a civil action due to the time bar are not ... left frustrated and disappointed with the legislation because the Scottish Government has not ... put in place the necessary resources to support that possible increase in actions.”—[Official Report, 27 April 2017; c 64.]

He has properly highlighted the committee’s conclusion about preventing a negative impact on current services. However, amendment 2, if it were agreed to, would lay on the Government conditions that would mean that the legislation could not be commenced by regulation, because the tests in the amendment could not be met.

The first test in the amendment requires that, before commencement,

“sufficient financial and other resources have been made available to ... meet any obligations”.

The effect of the bill, if passed by Parliament, will be to create an enduring right for individuals to act without limit of time. To give an unlikely but legally possible example, a person who was born in 2000 could take action under the bill in 2100. It is simply not possible to provide now the resources to support an action nearly a century hence.

The second test in the amendment is more general. It refers to

“any obligations arising from this Act”.

Unhelpfully, that captures obligations that might fall on all public bodies and all obligations, even where those arise solely from the actions or inactions of a public body that it is responsible for providing financial recompense to victims. I do not think that that is what Mr Ross seeks to do, but that would be the effect—as I read it, at least—of the words in amendment 2.

11:30  

Without engaging the policy issue—I do not believe that there is any difference between Mr Ross and myself on that—I say that amendment 2 goes much further, which de facto makes it impossible to support it in its present form. It touches on the more general issue that arose in the stage 1 debate. Mr Ross said:

“The Government must put in place the necessary resources to support that possible increase in actions.”—[Official Report, 27 April 2017; c 64.]

The difficulty with a “possible increase in actions” is that the number could be almost anything. The minister herself pointed out that the 2,200 figure is the mid-point of a range of estimates between 400 and 4,000. It was generally accepted that we could look at the issue for as long as we like without coming up with a number that would be anything other than an estimate in an estimated range. On that basis, I find myself unable to support amendment 2 in the form in which it has been lodged.

Liam McArthur

Stewart Stevenson has pointed out that there is policy agreement about the concerns and that the only way in which we will provide certainty is to ensure that the financial wherewithal exists for when individuals choose to bring cases. As I would have expected, Stewart Stevenson has done his due diligence with regard to what he sees as the precise impact of amendment 2. What he suggests might well be the case. Nevertheless, the amendment highlights an area in which the bill probably needs clarification, and in which reassurance is needed for those who might be minded to bring cases. Therefore, I hope that the minister will reflect on the intention behind amendment 2 and, while not using the same wording, possibly lodge at stage 3 an amendment of her own that Parliament as a whole can consider.

John Finnie

I align myself with a lot of the comments that Stewart Stevenson made and I certainly do not want to go into detail. It is entirely right that the legislation that is passed should be adequately resourced, but the essence of the bill is that the numbers are unknown. The bill is intended to give a signal of support to survivors in that it shows that there is an opportunity. It is an evolving situation and I am concerned about anything that could frustrate the progress of the bill, so I will certainly not support amendment 2.

Oliver Mundell (Dumfriesshire) (Con)

I understand the technical points that have been raised by my colleague, but given the policy agreement, it would be advisable to include amendment 2 for the moment and allow it to be refined at stage 3 when the bill returns. I will support the amendment.

The Deputy Convener

I will not support amendment 2. We cannot do anything that might delay commencement of the act—survivors have waited long enough. As has been said throughout our evidence taking, it is impossible for us or for anybody to estimate what it will cost, so amendment 2 is unworkable and I will not support it.

Annabelle Ewing

The Scottish Government strongly opposes amendment 2. What is proposed in the amendment is completely unworkable and could end up defeating the bill. It is clear to me that we should not do anything that might delay the bill’s coming into force: as Rona Mackay just said, survivors have waited long enough for a change in the law.

Witnesses to the Justice Committee have accepted that it is not possible to estimate with any certainty the bill’s impact; and we will not know the impact of the bill until after it has come into force. Therefore, it would be premature to draw conclusions about resources. Indeed, amendment 2 would put us in a catch-22 position: the impact will not be known until after commencement, but the amendment would not allow us to commence the act until the impact was known, or perhaps until a blank cheque had been written. The conclusion must be drawn that the act might then never be commenced.

It should be remembered that the bill’s proposals would not change the law of delict and the duty of care. On top of that, as the committee will appreciate, the current law allows new claims to proceed where the court considers that to be equitable. That must be viewed, at least, as a potential liability for local authorities that already exists, even aside from the bill.

The bill is about access to justice for survivors. Although we recognise that there will be financial implications for public bodies, which is the nature of civil litigation, we should not lose sight of the importance of the basic principle of removing an unfair barrier for survivors. Parliament has unanimously supported the general principles of the bill; amendment 2 runs the risk of derailing the whole aim of the bill. We need to respect the outcome of the interaction process and, most important, to respect survivors who have campaigned for decades for the proposed change.

Our public bodies, including local authorities, provide valued public services; I share Douglas Ross’s view about the importance of maintaining those at the highest standard. Of course, we are in regular dialogue with the Convention of Scottish Local Authorities and local government on a range of issues, so it will be open to local authorities to raise, in the normal way of things, concerns about any new and unplanned financial pressures that they face that might impact on service delivery, so that we can consider together how those might be addressed.

However, the impact will not be the same in all local authorities in terms of, for example, the number of cases and the availability of insurance cover in a case. We therefore do not yet know what the impact will be—we cannot know that in advance of implementation of the bill.

I recently met the former children and young people’s spokesperson for COSLA, Stephanie Primrose; it is clear that COSLA is not looking for a blank cheque. Rather, we agreed to continue the dialogue and to keep the situation under review. After a new COSLA spokesperson is elected on 30 June, I will seek a further meeting with them to discuss the issue.

Amendment 2 will not provide a constructive solution, but would end up holding the bill hostage and could potentially derail the aim of the bill, which is to remove the insurmountable barrier to access to justice for survivors of childhood abuse that the three-year limitation period embodies. I urge members to reject amendment 2.

Douglas Ross

I think that all the speakers, with the exception of the minister, accepted that the policy intent behind amendment 2 is not to derail things. It is unfortunate that the minister spent most of her remarks looking at that aspect; I think Stewart Stevenson and others accepted that amendment 2 has been lodged because there is a deficiency in the bill. Every member, from all the parties that are represented on the committee, accepted that there is a deficiency when we—

Stewart Stevenson

Will the member take an intervention?

Douglas Ross

No. I am sorry—I will not on that point.

We agreed at paragraph 245 of our report, as I said in my opening remarks, that it is important that the legislation is properly resourced. It is quite clear that it is not properly resourced and that the biggest barrier to ensuring—

John Finnie

Will the member take an intervention?

Douglas Ross

I am sorry. I will not, on that point. If I can, I will continue.

The most important point in ensuring that we get it right for victims is to ensure that the legislation is properly resourced. The Scottish Government has the opportunity to do some scoping on the issue, and the Scottish Government must also take responsibility. We heard from a number of witnesses, when we met representatives from COSLA and local authorities, that there are concerns about other services being cut to pay for the impacts of the bill.

With respect to amendment 2, it is important that we highlight the deficiency in the bill. I accept the points that Stewart Stevenson and others have made, but if my amendment is agreed to today, it will become part of the bill that can then be further amended at stage 3. For that reason, I will press amendment 2.

The Convener

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Deputy Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Ross, Douglas (Highlands and Islands) (Con)
Stewart, Alexander (Mid Scotland and fife) (Con)

Against

Evans, Mairi (Angus North and Mearns) (SNP)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green))
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Abstentions

McArthur, Liam (Orkney Islands) (LD)

The Deputy Convener

The result of the division is: For 3, Against 7, Abstentions 1.

Amendment 2 disagreed to.

Section 2 agreed to.

Section 3 agreed to.

Long title agreed to.

The Deputy Convener

That ends stage 2 consideration of the bill. I thank the minister and her officials for attending.

The Deputy Presiding Officer (Christine Grahame)

The next item of business is stage 3 proceedings on the Limitation (Childhood Abuse) (Scotland) Bill. Members should have the bill as amended at stage 2, which is SP Bill 1A, and the marshalled list, which is SP Bill 1A-ML. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting will be 30 seconds.

I refer members to the marshalled list.

Section 2—Commencement

The Deputy Presiding Officer

Amendment 1 is in the name of Oliver Mundell.

Oliver Mundell (Dumfriesshire) (Con)

Amendment 1 is a simple amendment that asks the Scottish Government to report back to the Parliament on resourcing the bill. Principally, it is designed to act as a backstop to cover a very specific set of circumstances—namely, where local authorities do not have insurance cover, or have inadequate insurance cover, for the relevant period.

The chamber will hear from the Minister for Community Safety and Legal Affairs that she does not want to write a blank cheque. Perhaps that is so, but I say to members that they should not be fooled. The simple fact is this: the minster will argue that the true cost of the bill and the resources that are needed for it are unknown or unquantifiable—that is, the Government cannot put a figure on them—but she is asking us to write that very same blank cheque for her; worse still, she is asking others to guarantee it.

Nobody can disagree with the merits of the bill. Its intentions are virtuous, long overdue and very welcome. Survivors and victims of childhood abuse have been denied justice for far too long. However, they deserve better than a rushed or half-done job. That is why it is imperative that we take this opportunity to get things right.

John Finnie (Highlands and Islands) (Green)

Will the member give way?

Oliver Mundell

No thank you.

Vile monsters have been allowed to hide behind the law, shielded by technical legal considerations. For years, the state did not want to know. Many who have held elected office have let those individuals down. We should not ignore that.

In my view, we are duty bound to take collective responsibility for the failings of the past. In taking that responsibility, it is only right that we acknowledge the financial cost that comes with trying to put things right. We cannot, in good faith, put this legislation on the statute books without recognising—

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Does Oliver Mundell agree that the amendment would delay access to justice for survivors who have waited far too long?

Oliver Mundell

I do not accept that point. The only thing that would delay access to justice for survivors would be the Scottish Government dragging its heels on committing to properly funding and resourcing the bill.

15:00  

John Finnie

I did not support the proposal at stage 2, although I appreciate that amendment 1 is narrower. I also appreciate the point that the member is making. Has he had discussions with the Convention of Scottish Local Authorities on its position?

Oliver Mundell

I have not had direct discussions with COSLA on the specific wording of the amendment. However, in the briefing that it sent members ahead of stage 3, COSLA makes its concerns very clear. A number of local authorities across Scotland do not have adequate insurance cover for the entire period. I would welcome an intervention from the minister on that point.

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

I am just looking at the paper that COSLA sent to the Justice Committee on the stage 3 process. It says:

“We noted with interest the amendment which was discussed and not eventually adopted and we recognise that given the uncertainty around numbers it would be very difficult to agree on a financial figure up-front of implementation”.

Does the member accept that COSLA has stated its position, which reflects the evidence received by the Justice Committee from a number of witnesses that, in advance of the implementation of the bill, the potential impact is simply unquantifiable?

Oliver Mundell

I thank the minister for that intervention, but amendment 1 is different from the amendment that was discussed at stage 2—it is narrower and considers only the retrospective aspects. Furthermore, if the costs are unquantifiable—if we do not know what they are—how can we ask local authorities and other organisations to bear the risk, rather than taking responsibility as legislators, and, in the Government’s case, taking responsibility for the legislation that it has introduced?

We cannot in good faith pass the bill without recognising the need to put in place adequate resources. To do so is just not fair or right. In failing to address the issue, we run the very real risk that by passing the bill, we will be passing the buck and so passing the burden on to local authorities.

Local authorities are already overstretched and badly underresourced. In practical terms, we could be asking councils to further cut services today to pay for the mistakes of the past.

We have a choice—on our watch, here and now. Do we ask the vulnerable individuals who rely on local authority provision to bear the risk that comes with the seemingly unquantifiable, or do we do what is right, which is to have a full and proper scoping exercise to ensure that the bill is not only enacted, but enacted well?

Surely, given the systematic scale of abuse that has occurred, central Government must share some of the responsibility and help to mitigate the risks. Today, the Scottish Government has the chance to make good. Ministers cannot take credit for the changes at the same time as failing in their duty to ensure that they are properly resourced.

I move amendment 1.

The Deputy Presiding Officer

Six members wish to speak so I ask all members keep their speeches short.

Claire Baker (Mid Scotland and Fife) (Lab)

Amendment 1 is an improvement on a similar amendment at stage 2. It provides greater clarity and addresses some of the Justice Committee’s concerns. At stage 1, the committee agreed that it was vital that the bill should be properly resourced. Amendment 1 is a response to the on-going concerns about funding—concerns that that the committee heard in evidence.

It is vital that we reassure survivors that justice and compensation are available. There will be costs to local authorities defending actions, and the evidence to the committee indicated the patchy nature of insurance provision. The bill is more than just a signal of support. We need to provide certainty that the financial resources are available when cases are brought. We must recognise the strength of feeling that confidence in that is lacking.

I heard what the minister said when she opposed the stage 2 amendment. However, I do not accept that amendment 1 will delay the bill or that the report that it refers to is a request for an agreement on a figure. Surely the Government can provide a report that will give assurances that sufficient financial resources will be available. Otherwise, it is suggesting that it cannot guarantee that resources would be available. That situation would completely undermine the bill’s intent.

During stage 2, the minister talked about a “blank cheque”. It is important that she gives assurances that the Government will meet responsibilities and that local authorities are able to meet responsibilities, too. Is the Government suggesting that the amount will be capped and that it might be difficult for people to receive recompense?

I do not accept that producing the report that the amendment asks for is an onerous or impossible task for the Government. It is possible for the Government to produce a report that is appropriate and proportionate, and which can provide assurances to survivors that the bill is meaningful and effective. I intend to support amendment 1.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I rise to offer support from the Liberal Democrat benches for amendment 1, in the name of Oliver Mundell. My colleague Liam McArthur agreed at stage 2 that the financial memorandum to the bill is too narrow and does not account for the significant surge in demand for resource that might occur at every level in the immediate aftermath of implementation. In particular, it does not account for the problem that will arise if insurance cover for the period in question has expired or never existed.

There were some problems with the amendment that a Conservative member lodged at stage 2, which was not agreed to, but the principle at its heart was sound. The Scottish Government could have lodged an amendment of its own to respond to the challenge that had been identified, but it failed to do so.

Members have been well briefed by the Society of Local Authority Lawyers and Administrators in Scotland, Social Work Scotland and COSLA that the gap in resourcing could pose an existential risk to the process. The Scottish Government claims that our agreeing to amendment 1 might delay the implementation of the legislation, but I suggest that the possibility of the process grinding to a halt for want of resource represents a far more significant impediment to justice for victims of historical abuse. We will support amendment 1.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

It is fair to say that the amendment that is before us is narrower in scope and closer to being able to be taken forward than the amendment in the name of Oliver Mundell’s former colleague that the committee considered at stage 2. However, it still suffers from the same basic problems. If it were to be agreed to, the bill could move forward, but there would be a potential road block in relation to the laying of regulations that would give effect to the bill.

Why is that so? I accept that the amendment applies only to “public bodies”—although we should bear it in mind that that does not mean just local authorities. The real issue is that amendment 1 requires the Government to demonstrate that resources are available to

“meet any obligations arising from an action brought”.

Oliver Mundell

Will the member take an intervention?

Stewart Stevenson

I will develop my point first, if I may.

There is no limit of time associated with a provision that refers to

“any obligations arising from an action”.

Long after I have shuffled off this mortal coil, despite my ambition to live for ever, someone who is 100 years old could bring forward and succeed in a court action that results in a payment being made. The normal way of dealing with an obligation that might arise in 2070, 2080 or 2090 is through the normal budget process of this Parliament. It is quite unreasonable that we should work out, by some random, uncalibrated, wet-finger estimate, what the costs will be in 60 or 70 years’ time. We simply cannot do that, and I defy anyone in the Parliament to provide a methodology by which we can do that.

The provision of court services and the compensation to be paid by public bodies under the bill are matters that must be dealt with closer to the point of application. If we accept the proposed approach in this context, why do we not say that we must fund the court services and all future obligations of all public bodies for ever? The principle behind amendment 1 takes us to that point.

I am not objecting to proper funding, of course. I broadly support—

The Deputy Presiding Officer

Can you come to a conclusion, please? I am trying to get other members in.

Oliver Mundell

Will Mr Stevenson take an intervention?

Stewart Stevenson

I will, if I am allowed to do so.

The Deputy Presiding Officer

I would rather get other members in, if that is okay. Mr Mundell, you will have a chance to sum up. I appreciate that this is an important debate, and I want other members to have their say. I call Johann Lamont.

Johann Lamont (Glasgow) (Lab)

Presiding Officer, this is such an important discussion that if it encroaches a little on the general debate on the bill, I do not think that that will do the bill any harm at all.

The Deputy Presiding Officer

You might be reading my mind, Ms Lamont. I am allowing the discussion to run on, because I appreciate that it is important.

Johann Lamont

Thank you. I appreciate your comments.

I rise to support amendment 1 and to make a number of points. Stewart Stevenson’s argument might look good on paper, but it does not sound like a commitment to the principles of the bill. It looks like a way out of the challenge, rather than an attempt to address the challenge.

The minister has spoken about the difficulty of calculating the numbers. I am sure that survivors groups and survivors themselves would be able to support her in developing an understanding of the numbers. However, are we saying that, if the numbers are too high, we cannot guarantee the rights enshrined in the bill? We are able, in the Parliament, to say that we will provide baby boxes without being sure about the number of babies that will be born in the next year.

The fundamental issue here is that, if there is a right that members across the chamber want to exercise, we need to find the means to deliver on that.

The idea that such a proposal will stop the legislation is simply not true. People will genuinely be asking that, as that is what they have been told. The advice that we have had from the Scottish Parliament information centre is that that is simply not the case. If it were the case, why did the minister not make a proposal addressing the technical issues that she is identifying? She has the machinery of the state to find a way through this process. I would also say to her that there is a difference between saying that something is difficult to calculate and saying that it is unquantifiable. Those are two different things.

Annabelle Ewing

Will the member take an intervention?

Johann Lamont

If I could make progress.

This issue really does matter, and we need to understand why it matters so much to survivors. The bill creates a right to justice that has been denied for too long. There are survivors who theoretically have had rights throughout their lives. Theoretically, they had a right to education, a right to protection from abuse and a right to have families, social work, teachers and others protect them—a right to a childhood. Those were all rights that, in reality, were denied to them.

It is understandable that survivors now ask whether the rights in the bill are somehow not to be given that underpinning commitment. The bill without a commitment to ensure the resources to deliver those rights would be, for survivors, yet another example of the gulf between the theoretical rights that they have and the reality of their lives.

I say to the minister in all seriousness that this is a fundamental responsibility. In establishing a right, you need to will the means to deliver that right. That is why it matters. A right that is not enforceable in reality is not a right at all.

Across the chamber, we know that we have all let people down. By supporting amendment 1, we can give people the reassurance that we are not just saying to survivors, “We would like you to have that right.” We can will the means to ensure that they have certainty—that their rights will actually be delivered.

Margaret Mitchell (Central Scotland) (Con)

I rise to support Oliver Mundell’s amendment 1. Without a commitment that adequate resourcing will be available, there is a very real danger that the much anticipated and eagerly awaited aims of the bill will not be realised. There is no need at this stage to quantify the amount, and a commitment to adequately resource would not delay the introduction of the measures. Frankly, if the political will is there, the appropriate regulations can be laid timeously.

It would be an absolute tragedy if, at this late stage, survivors of historical childhood sexual abuse are let down. If the Government refuses even to consider the proposed resourcing, which is fundamental to the bill being effective—if it absolutely refuses to consider it as a possibility—it is a very black day for the Government.

Mary Fee (West Scotland) (Lab)

In speaking to Oliver Mundell’s amendment 1, I will also mention former MSP Douglas Ross’s amendment at stage 2. I was unable to support Douglas Ross’s amendment then, because it would have required the Scottish Government to provide a full costing for the proposed legislation before it could be passed. That would have been difficult, as we were unsure of the full cost implication for local authorities and third sector organisations when establishing the information. That amendment would in effect have stopped the bill in its tracks. For those reasons, I could not support it.

However, amendment 1, lodged by Oliver Mundell at stage 3, requires ministers to prepare

“a report showing that sufficient financial and other resources”

are available to help meet any obligation arising from the legislation. That report should be laid before the Parliament before the bill receives royal assent.

Although it could be argued that the difference between the stage 2 and stage 3 amendments is slight, I will support Oliver Mundell’s amendment, because the Government will have time to prepare an indicative report of the resources that local authorities will require. A report of that nature could potentially allow local authorities and other affected organisations to plan the resources that they will require. That can only be a helpful progression to enable survivors of childhood abuse to feel confident that they will get the help that they require when raising claims.

15:15  

Annabelle Ewing

The Scottish Government strongly opposes amendment 1, which is largely the same as the amendment that Douglas Ross lodged at stage 2, which has been referred to. It carries with it almost all the difficulties that I raised at stage 2.

Like Douglas Ross’s amendment, amendment 1 is completely unworkable. It could derail the bill and thereby deny survivors the benefit of the bill. Amendment 1 would require a report to be laid before Parliament, before the bill was commenced, to show that sufficient resources have been made available to public bodies to “meet any obligations” that arise from the bill’s implementation.

Oliver Mundell

Will the minister give way?

Annabelle Ewing

I would like to make a bit of progress.

Although the formulation of the new amendment is concerned with actions that relate to abuse that took place before the bill gained royal assent, the basic problems that it generates for the coming into force of the bill remain the same. As I made clear at stage 2, such an amendment would put us in a catch-22 position. The impact of pre-existing abuse will not be known until after commencement, but amendment 1 would not allow us to commence the act until the impact was known—or perhaps until a blank cheque had been written.

Oliver Mundell

Will the minister give way?

Annabelle Ewing

I would like to make a bit of progress.

It was clearly recognised during the scrutiny of the bill that we cannot predict with any certainty what the impact will be. COSLA, Social Work Scotland, Police Scotland, the Law Society of Scotland and Aberdeen City Council all made that point, which was recognised by members of the Justice Committee.

Oliver Mundell

Does the minister recognise that, when she says that the figure is unquantifiable and that she is unwilling to write a blank cheque, she is passing the burden on to others to write the same blank cheque?

Annabelle Ewing

I do not accept that. As I stressed at committee, we have been in regular discussions with COSLA at official level—officials met COSLA last week to discuss the issues. COSLA has reiterated that it is not looking for blank cheques to be written. In correspondence with officials, COSLA opined that the amendment seems to be unworkable. That is COSLA’s position, which Oliver Mundell might wish to consider.

When they gave evidence to the Justice Committee, all those players recognised that it would not be possible to come up with a specific figure.

Johann Lamont

Will the minister take an intervention?

Annabelle Ewing

COSLA also said:

“There is undisputed recognition about the uncertainty of implementing this legislation. It is impossible to predict how many instances of abuse occurred in this timeframe, how many survivors may consider bringing a claim, and then in turn how many claims may be brought against which organisations.”

Johann Lamont

Will the minister take an intervention?

The Deputy Presiding Officer

Please sit down, Ms Lamont.

Annabelle Ewing

The new version of the amendment applies to harm that took place before the bill received royal assent—

Margaret Mitchell

Will the minister take an intervention?

Annabelle Ewing

I have taken an intervention.

However, that does not solve the fundamental problem that I just described. The great uncertainty about impact applies to past cases as much as it does to future cases. Even when the abuse took place before the bill received royal assent, cases still might not be raised for some years into the future, which is particularly apparent when we take into account the silencing effect of this heinous abuse and the fact that survivors can take on average 22 years to get to the stage at which they can come forward.

I understand that there are concerns about implications for local authorities and the importance of maintaining services at the highest standards. As I said, my officials have been in regular dialogue with COSLA. COSLA recognises the difficulties that are involved and is looking for continued dialogue about the impact. I confirm that we will work with COSLA and others to find the best way of monitoring the bill’s impact and how it should best be addressed.

Amendment 1 contains a number of technical difficulties. In essence, it is so uncertain in its effect that it would leave the validity of commencement regulations in doubt. There are issues about who would determine what was sufficient and what would happen if commencement was challenged once cases had concluded.

Oliver Mundell said that his amendment would apply only when no insurance cover was available. Nowhere in the amendment does it say that.

Putting such a condition on commencement would run the risk of preventing the bill from coming into force. Parliament unanimously supported the general principles of the bill, and creating such an unworkable requirement would appear to go against the will of the Parliament.

We should not forget that survivors have campaigned long and hard for this change. Amending the bill in a way that might risk frustrating the process would be disrespectful to survivors and their very long fight for justice. I urge members to reject amendment 1.

The Deputy Presiding Officer

I understand that there are passions on the issue, but I ask members to be respectful to each other. There are genuine views on all sides and I have let the debate run.

Oliver Mundell

I am gobsmacked by the Scottish Government’s complacency. It seems to have missed what the legislation is about. If we cannot guarantee that claims that come forward in 20 years’ time will be met, what is the point in passing the legislation at all? The amendment gets right to the heart of the subject and I am disappointed but not surprised that the Government will not support it. Why would it? Why take responsibility for its actions just because it can?

Last night, some SNP back benchers were willing to break their party whip on tail docking. I can only hope that back benchers will be as willing to listen to their consciences this afternoon. In particular, I appeal to Green Party and SNP members of the Justice Committee to make good on the recommendation that we made in our report on the bill, at paragraph 245, which was unanimously agreed by all members of the committee. It says:

“It is important that the Bill is properly resourced to ensure both that its policy intent is achieved and to prevent any negative impact on the provision of current services by local authorities.”

Johann Lamont

Does Oliver Mundell agree that survivors want that reassurance? The bill would not exist if it were not for survivors fighting for it. We know that many organisations and agencies and very many of the great and good said that it could not be done. We have proven that it can be done; now let us go the extra bit to make sure that it is resourced.

Oliver Mundell

I thank Johann Lamont for that passionate intervention. She makes an important point, because people in the chamber need to remember that those who have, like us, held elected office over a great many years have let those people down badly. The legislation that we are debating today would not exist—[Interruption.] Do you want to stand up, minister?

Annabelle Ewing

I am curious as to why, when it is recognised by COSLA, Aberdeen City Council, the Law Society of Scotland, Police Scotland and Social Work Scotland among others that we cannot quantify with exactitude the figure for the bill’s potential impact, Oliver Mundell nonetheless wishes to go forward with an amendment that risks putting the bill into jeopardy and therefore letting down survivors who have been so brave over so many decades in getting us all to this stage, which is where we should be.

Oliver Mundell

It is clear that the minister has plenty to say now but, when the tough questions were being asked of her, she did not want to answer. Perhaps she could stand up again and answer this question. Will she confirm how many of Scotland’s 32 local authorities have adequate insurance cover for historical child abuse actions for the period in question? [Interruption.]

Annabelle Ewing

I—

The Deputy Presiding Officer

Just a minute, minister. I have to call you first.

Annabelle Ewing

Presiding Officer, I would have thought that the question should be directed to each of the 32 local authorities, but of course—[Interruption.]

The Deputy Presiding Officer

I would like to hear the answer, please.

Annabelle Ewing

Can I introduce an element of reality into Mr Mundell’s thoughts? In looking at each individual fact and circumstance, we would need to determine whether insurance cover was in place. Any meaningless and general statement along these lines would not help individual cases. Perhaps Mr Mundell might like to reflect on that point.

Oliver Mundell

I will reflect carefully on that point and, in turn, I ask the Scottish Government to reflect on the length of time that it has had, while the bill has been progressing through Parliament, to consider some of those points.

To answer some of the other questions that the minister posed, the report that the amendment refers to would not ask for a quantified amount of support.

I correct what the minister and Stewart Stevenson suggested. The amendment would not mean covering all obligations that arose as a result of the report; the wording is qualified. If they read the whole amendment, they will see that it refers to obligations that can be met

“without prejudice to the provision of services by those bodies”.

Annabelle Ewing

Can I respond to that, Presiding Officer?

The Deputy Presiding Officer

I am glad that you are speaking through the chair, minister, because I was beginning to think that I would go away and have a cup of tea while you both had a rammy across the chamber.

Annabelle Ewing

I apologise, Presiding Officer.

I will quote the amendment, which states:

“The condition is that the Scottish Ministers have prepared, and laid before the Parliament, a report showing that sufficient”—

the word “sufficient” is not defined—

“financial and other resources have been made available to ensure that public bodies can, without prejudice to the provision of services by those bodies, meet any obligations arising from an action brought by virtue of”

the relevant provisions of the bill. That is what Mr Mundell’s amendment says. Maybe he is not totally familiar with what he is trying to do.

Oliver Mundell

It is the minister who is not reading the detail of the amendment.

The First Minister (Nicola Sturgeon)

She read it out.

Oliver Mundell

She read it out, but she does not understand what it means on paper.

Regardless of that point, the amendment simply asks for a report. It does not ask for the numbers or for a specified amount, and it is not asking for a further vote on the quality of the report that would be put forward.

By agreeing to the amendment, we would ensure full scrutiny of the legislation by the Parliament. It is not a wrecking amendment and it would not delay the legislation. It simply asks ministers to take accountability for the delay that has occurred on their watch in bringing forward the changes. It asks them to underwrite the unexpected financial burden that the bill might place on local authorities and to ensure that vulnerable individuals who are in the care of the state today do not pay the price for the mistakes of the past. The unwillingness of ministers to take that point seriously smacks of the same cowardice and dithering from those in authority that have allowed the whole issue to be brushed under the carpet for too long.

Patrick Harvie (Glasgow) (Green)

I am grateful to Oliver Mundell for giving way. As he will be aware, I am not a member of the committee that scrutinised the bill in detail, but I thought that we were coming here to listen to a debate in which there would be a good degree of consensus on the objective of the bill. I have to say to both the member and, I am sorry to say, the minister that I find it slightly unedifying to hear people accusing each other of wanting to let down the victims of historic child abuse. I do not think that that is the kind of debate that we ought to be having. Does he intend to address the matter that has been raised, which is that COSLA considers his amendment to be unworkable, and which he said in his opening remarks he had not asked it about?

Oliver Mundell

I thank Patrick Harvie for that intervention. I do not think that the debate is “unedifying”. Having spoken to survivors’ groups this morning, I know that the very survivors who have been championing and campaigning for the bill would understand why the amendment is really important and what it offers them. COSLA may have reached its opinion based on the advice of the Scottish Government about what the amendment means, because it seems that the minister is so blinkered that she is not willing to consider what a “report” actually means. I press the amendment in my name.

The Deputy Presiding Officer

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Deputy Presiding Officer

There will be a division. This is the first division, so I suspend proceedings for five minutes.

15:28 Meeting suspended.  

15:33 On resuming—  

The Deputy Presiding Officer

We move to the division on amendment 1.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Evans, Mairi (Angus North and Mearns) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Deputy Presiding Officer

The result of the division is: For 50, Against 65, Abstentions 0.

Amendment 1 disagreed to.

The Deputy Presiding Officer

That ends consideration of amendments.

I am required to read out a note for members who were not here yesterday. If members were here yesterday, they probably do not want to hear it again.

As members will be aware, at this point in the proceedings, the Presiding Officer is now required under standing orders to decide whether, in his view, any provision in the bill relates to a protected subject matter—briefly, whether any provision will modify the electoral system and franchise for Scottish parliamentary elections. If so, the motion to pass the bill requires support from a supermajority of members: that is, a two-thirds majority, or 86 members. In this case, the Presiding Officer’s view—[Interruption.]

I would like a bit of quiet while I am reading, even though members might have heard it before. Thank you.

In this case, the Presiding Officer’s view is that no provision in the Limitation (Childhood Abuse) (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a debate on motion S5M-06201, in the name of Annabelle Ewing, on the Limitation (Childhood Abuse) (Scotland) Bill at stage 3. I ask those who wish to speak in the debate to press their request-to-speak buttons.

I call Annabelle Ewing to speak to and move the motion. You may have no more than eight minutes, please, minister.

15:37  

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

I am pleased to open the stage 3 debate on the Limitation (Childhood Abuse) (Scotland) Bill and to invite members to agree to pass it.

I thank members of the Justice Committee, the Finance and Constitution Committee, and the Delegated Powers and Law Reform Committee for their hard work and careful scrutiny of this hugely important bill. I also thank members for their comments on the bill during its passage through the Parliament, and I thank the organisations and individuals who provided oral and written evidence to the committee and briefings on the bill’s provisions.

Most important, I thank survivors, who have been at the heart of this process. I thank them for their bravery and their persistence, for bringing to our attention their plight and the injustices that they have suffered and for not giving up their fight to set those injustices right. I am humbled by the courage that they have shown, not only in campaigning for this legislative change but in coming forward and sharing their experiences. It is the survivors coming forward that has made the bill possible and been the reason why we have reached this important milestone today.

I was deeply saddened to learn that Frank Docherty passed away on 30 April. He was a survivor who fought long and hard for the voices of survivors to be heard, and it is clear that we have lost an important witness and champion of survivors’ rights.

I also thank the Scottish Human Rights Commission for all the work that it has done for many years on this subject. As members will be aware, the bill stems from its interaction process and the “Action Plan on Justice for Victims of Historic Abuse of Children in Care”, which came out of that work. The action plan set out a number of recommendations and today I am pleased to be at the point of fulfilling a key commitment in response to them.

I have welcomed the constructive discussions that we have had on the bill as it has made its way through the parliamentary stages. The Justice Committee’s evidence-taking sessions highlighted a number of important issues, among them the definition of abuse and, in particular, the issue of neglect. I am grateful to the witnesses and the committee for raising this issue and recommending that we look at it again, and I believe that our amendment, agreed at stage 2, to mention “neglect” expressly in the definition has added clarity to the bill. It ensures that there is no doubt that abuse in the form of neglect is covered by the definition of abuse in the bill.

The committee evidence sessions also highlighted other issues in the bill, in particular in relation to inserted section 17C of the Prescription and Limitation (Scotland) Act 1973, which allows previously raised cases to be reraised, and also in relation to inserted section 17D, which provides safeguards in line with the European convention on human rights. I found those discussions helpful in relation to re-examining the issues. With regard to section 17C, I noted the committee’s suggestion that more clarity could be provided in the explanatory notes on the question of the burden of proof. I can confirm that changes have been made to the explanatory notes in line with that recommendation.

As I have mentioned before, the bill is about striking a balance, in particular finding a balance between being inclusive and avoiding unintended consequences. I have made every effort to ensure that the provisions in the bill are justified and proportionate.

On the important issue of prescription, I welcome the conclusions of the Justice Committee on the law on prescription, which is relevant to abuse that took place before September 1964. Because of the nature of the law on prescription and human rights considerations, prescription will remain unchanged, and the committee agreed that that is the right approach. I am, however, aware that the issue of prescription has come as a great disappointment to many survivors, and I regret that that is not something that the bill is able to address.

However, as members will be aware, the bill is not the only step that has been taken by the Scottish Government to support survivors of childhood abuse, and it is important to set the bill in the context of a number of other measures that are designed to improve the situation for survivors.

In relation to survivors who are affected by the law of prescription, the current work to develop a consultation on the provision of financial compensation will include all in-care survivors within its scope. That work is being taken forward by the centre for excellence for looked after children in Scotland, in collaboration with the interaction action plan review group, which includes survivor representatives. That work is in its early stages, with consultation expected to start later in the summer.

Already up and running since October 2016 is the £2.5 million in-care survivor support fund, which is now called future pathways. Older adults have been identified as a priority group since the inception of the support fund, along with people in distress. Demand for support has been encouraging, with more survivors than initially anticipated coming forward. To improve the responsiveness of the service, and to address the needs of older and more vulnerable survivors who might not yet have come forward for support, future pathways is increasing the number of support co-ordinators to enable more responsive support to all. One of those co-ordinators will focus on the needs of priority groups such as older survivors. I take this opportunity to encourage all survivors of in-care abuse, regardless of age, to get in touch with future pathways.

Other measures to support survivors of in-care childhood abuse include the national confidential forum, which continues to be a forum in which the voices of in-care survivors can be heard, acknowledged and understood. In October 2015, the Scottish Government established the independent Scottish child abuse inquiry, which was tasked with conducting an independent investigation of the abuse of children in care in Scotland. That is one of the widest-ranging public inquiries that Scotland has ever seen, and it began its first phase of hearings on 31 May.

The Scottish Government also supported the Apologies (Scotland) Act 2016, which came fully into force earlier this week. By protecting the giving of apologies in certain civil actions, the act is intended to encourage changes in social and cultural attitudes towards apologising.

That range of measures, along with the passing of this bill, will make a significant difference for survivors, and I am pleased to be here today at this significant milestone.

I move,

That the Parliament agrees that the Limitation (Childhood Abuse) (Scotland) Bill be passed.

The Minister for Parliamentary Business (Joe FitzPatrick)

Presiding Officer, Johann Lamont made a point earlier about the time that is available for the debate. I wonder whether I could move a motion without notice to postpone decision time to 4.45, to ensure that there is time for all contributions to be made in this important debate.

The Deputy Presiding Officer

I am currently giving consideration to that. I will send you a note and ask you to move the motion without notice at the appropriate time.

15:44  

Oliver Mundell (Dumfriesshire) (Con)

For many, today represents a historic day, not only in the life of the Parliament but for our society as a whole. Today, we have the opportunity to right a historic wrong. Although the legislation is no panacea, there can be no denying the significance—real and symbolic—that changing the law will bring. For far too long, survivors and victims of abuse have been denied justice. I say “survivors”, but we must remember that many have not survived.

As I have already said today, vile monsters have been allowed to hide behind the law, shielded by technical legal considerations. Our state did not want to know. Many like us who have held elected office have let down those individuals. As we welcome this step forward, we must take our share of collective responsibility for the grave failings of the past.

There are many living among us who have had their lives destroyed; there are many who were in our care but experienced no care at all and who have endured the unimaginable and been denied their childhood. To call what has happened an atrocity is inadequate. What is harder still to acknowledge and to accept is that such acts continue to happen to this day.

On behalf of those on the Conservative benches, I say to all those who have experienced abuse that we are truly sorry. They have been wronged and nothing that is said or done in this place will ever put that right. However, we must do what we can and, at the very least, we owe it to all those who have gone before and all those who are yet to come to give them their chance to have their day in court. We owe them the right to seek justice, to bring the issues into the light and to demand that the perpetrators face the consequences of their actions. Of course, there will be disappointments; of course, there will be cases that do not proceed due to a lack of evidence, or because evidence has been destroyed. There will be further cases in which, because of the delay in getting this legislation, the perpetrators are dead.

Over the past few months, I have met survivors and heard their stories. I will never forget a survivor who told me that the violence inflicted on her had gone beyond the physical and the psychological and had destroyed part of her soul. However, she had not given in or given up. Like many who deserve our praise and admiration, she had the courage to speak out.

It is the survivors who have delivered this legislation and forced change. They have campaigned tirelessly and vocally. Some have, in their own way, fought back by living their life as fully as they can. For them, this legislation sends out a message that cannot be ignored: no longer will our legal system aid and abet those who deserve no mercy. That is a victory in itself. Those who have done wrong must be answerable, and they do not get to put any time limit on justice.

By removing the time bar, we are removing one of the barriers that stand in victims’ way. The bill rightly recognises and acknowledges that, for many survivors, any attempt at healing may take some time. For some, it will take years before they are ready to speak about their ordeal and to confide in another after their trust has been broken and perhaps many more years after that before they can face the legal process.

Many of us will never be able to comprehend the complexity of that process, so let us not be arrogant enough to imagine that today’s legislation solves or addresses all those challenges. Although this is rightly a victory for campaigners, we as parliamentarians must consider this the start, not the end, of a journey. There will always be more that we can do. There is no room for complacency on our part.

Let us remember that the bill is not the answer for everyone. For example, it does not offer, as the minister has outlined, the same opportunities for justice to those who suffered abuse prior to 1964. For reasons that others will cover in their speeches, it has not been legally possible to do the same for them.

To end on a more positive note, it is clear that some who have suffered are no longer afraid. This change will help to deliver the closure that they are seeking.

I urge ministers to reflect on what further steps can be taken to address childhood abuse. In the same spirit, I ask the Government to keep an ever-watchful eye on how the changes that we are making today work in practice and how they are funded. Let us make sure that those who have campaigned so hard and those who have waited so long are not let down a second time.

15:50  

Claire Baker (Mid Scotland and Fife) (Lab)

I am pleased that the Limitation (Childhood Abuse) (Scotland) Bill has reached its final stage today. We should acknowledge that it is 10 years since Lord McEwan commented in a judgment:

“I have an uneasy feeling that the legislation and the strict way the Courts have interpreted it has failed a generation of children who have been abused and whose attempts to seek a fair remedy have become mired in the legal system ... there is little I can do about it except to hope that reform will not be long delayed.”

It can be argued that it has taken too long to see that reform, and there will be survivors for whom the legislation is too late. However, it will give people choice—people who suffered terrible abuse as children, who were abused when they were supposed to be protected and who had experiences that have hugely impacted on their lives as adults.

Child abuse is an extremely difficult crime to acknowledge. It has come out of the shadows only in recent years, and the increase in historical criminal cases demonstrates the legacy that Scotland has to deal with. The bill was introduced in the shade of the Scottish child abuse inquiry, which is vital to demonstrating transparency, accountability and responsibility. A challenging inquiry, it has been problematic and it has not been able to maintain the confidence of all survivor groups. Although the bill extends to survivors new rights to pursue cases in the civil courts, not all survivors will wish to take that path, and it does not recognise the collective experience. It is crucial that the inquiry delivers answers and that it can expose a culture that we as a society are no longer prepared to hide or tolerate.

We must now focus on supporting successful implementation of the legislation. The report of the commission on parliamentary reform, which was published this week, recognises the importance of post-legislative scrutiny, and the bill is a piece of legislation that we need to be alert to. We are giving people a new right, and it is one that they must have confidence in.

The amendment to the bill was not agreed to, but the Government needs to address the on-going concerns about costs. I appreciate that the minister is having conversations with the Convention of Scottish Local Authorities, but it is clear from evidence to the committee that, as well as the anticipated costs of legal defence and action, more significant costs will be involved in successful claims. The financial memorandum on the bill argues that there is an unquantifiable cost, but there will be a financial impact for defenders, and there are continuing concerns from COSLA and others about the ability to meet those costs. Those are important matters that the Government needs to resolve.

We need to recognise that insurance may be available in some cases, but not always, and concerns have also been raised about expired policies, companies that have folded and inadequate insurance policies. The Government must recognise that a demand-led response is necessary, and it will have to work with others to make that possible. Authorities will have responsibility, but it will not be by intent, and the burden will be greater on some than on others.

The debate on the amendment should focus the Government’s mind on ensuring that sufficient resources are available. At committee, the minister talked about the risk of signing a blank cheque, but we do not want to suggest that the available support could be capped or that we will not be able to respond to demand.

I hope that today’s debate will reassure survivors that we are not going to have empty legislation, and that it will deliver rights to them. Not all survivors will want to pursue a case that could be difficult, disputed and traumatic. There was recognition in the evidence that that could be a difficult task, given all the normal practices of the legal system. However, the bill provides choice for survivors. We must ensure that measures are in place to support people to make an informed choice and that there is support for those who wish to pursue this course of action.

How does the minister anticipate support being made available to survivors who bring civil actions? The third sector offers support groups, but how can we ensure that it can develop knowledge and expertise on the legislation? Is the minister aware of plans for training opportunities or events? How does she plan to promote such opportunities?

There is also recognition of the need to provide training for the legal profession and to develop specialisms. The cases that come forward will be complex. Specialist courts were proposed and discussed in the evidence, and the Government could legislate for those if it accepts the case for them. I hope that it will give that idea further consideration.

Finally, I want to talk about the merits of a financial redress scheme. The new legislation will not apply to people who were abused prior to 1964 and no civil action is available to them. A financial redress scheme could be a way to recognise the abuse they suffered while in care. A scheme aimed specifically at the needs of that group of elderly and often frail survivors would ensure that they are provided with a level of redress while they can benefit from it. I urge the Government to advance the work on that as soon as possible.

The bill will be an important piece of legislation that addresses an injustice for a group of people who deserve recognition and justice. The law as it stands excludes them from the civil courts because they were young, vulnerable and abused when the crime took place. We must now make sure that they can successfully use the legislation—if they decide to use it—by ensuring that they are supported and that the act is properly resourced.

The Deputy Presiding Officer

Before we move on, in order to allow all those who wish to contribute to do so, I am minded to take a motion without notice under rule 8.14.3, to move decision time to 4.45.

Motion moved,

That, under rule 8.14.3, the debate be extended by up to 30 minutes.—[Joe FitzPatrick]

Motion agreed to.

The Deputy Presiding Officer

We now move to the open debate, with speeches of four minutes—we will still be quite strict on timing.

15:56  

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As a member of the Justice Committee, I support the bill and I agree that it will improve access to justice for survivors of historical childhood abuse. I thank the minister and the Government for introducing the bill and I thank all the members and witnesses who participated in the committee’s scrutiny. The committee dealt with many of the technicalities of the bill and scrutinised it fully. We heard evidence from a number of people. As Oliver Mundell and others have said, some of the most powerful evidence was from the survivors who presented to us.

Although the bill undoubtedly has some shortfalls, to me it represents our continuing progress as a nation. It shows that we treat the issue with the utmost seriousness, that we acknowledge that we got things wrong for victims in the past and that we are on the right path to truly tackle the issue. It is absolutely right that the time limit should be removed for such horrible offences, because we know that many people take years to disclose this sort of crime. Indeed, in my experience in social work, many people do not speak about childhood abuse until they become parents, or even way after that. As I think I have said previously in the chamber, it is not uncommon for services to work with a family and for disclosure to come out through that work, even when the terms of engagement have nothing to do with that.

The Moira Anderson Foundation undertakes a lot of work across Lanarkshire and has direct experience of working with victims who have taken years to disclose. Today, I told people at the foundation that I was speaking in the debate, and they told me about a service user they have been working with for the past couple of years who will be directly affected by the bill. I have been given permission to share his story. For approximately two years, the foundation has supported a male in his 30s who was sexually and physically abused by a trusted adult when he was in his early teens. The abuse was very violent and threats were constantly made about what would happen to his family should he ever speak up. The abuse got so bad that his behaviour deteriorated and he ended up in care, where he suffered further abuse.

The individual turned to alcohol and drugs as a way of blocking out the memories of the horrendous abuse. As an adult, his marriage and contact with his children broke down due to his anger issues and his huge distrust of people. The individual felt unable to go to the police because of his deep sense of shame. He felt that, being male and a teenager, he should have been able to fight off his abuser.

With the support of the Moira Anderson Foundation, he went on to make a statement to the police. During his interview, he disclosed sexual abuse in care as well as physical abuse. The sexual abuse had been undisclosed even to the Moira Anderson Foundation before that point. Despite the trust that he had built up with the worker from that organisation, there was more abuse that he had not been able to disclose. He would never have been able to speak to the police earlier than he did, because he was not in the right place. However, he was able to speak to the Moira Anderson Foundation. When I contacted people at the foundation today, they said that they have been discussing the bill’s progress through Parliament with that individual. When we sit in the chamber and pass bills, it is all about people like that who are directly affected. He will, I hope, be able to take advantage of the bill.

The bill takes the correct steps that are needed to ensure that access to justice is available to survivors of historical abuse. It is vital that we continue to explore measures through which survivors of abuse have the support and means to deal with the effects felt from childhood abuse. As has been said before in the chamber, at present individuals are not able to bring cases to civil court after three years, including cases that involve side effects such as post-traumatic stress disorder, anxiety or depression. Survivors currently face barriers in attempting to access the civil justice system.

I see that my time is running out, so I will conclude, although I had more to say.

I did not agree with Oliver Mundell’s amendment, but it was well placed. Overall, the whole Parliament and every party has supported the bill. Let us take that support forward and ensure that the bill works.

The Deputy Presiding Officer

Mr MacGregor, your time was not running out; it had run out. I ask everyone else to take note of that, please.

16:00  

Miles Briggs (Lothian) (Con)

I am pleased to take part in this stage 3 debate.

I thank members of the Parliament’s Justice Committee and other colleagues for their work at previous stages of the bill, including on a thorough and useful stage 1 report. I also thank the external organisations that contributed briefings and materials during the legislative process.

The Scottish Conservatives have consistently supported the bill in principle and in its aims, and we will continue that support at decision time.

It is right that the Parliament will remove the three-year limitation or time bar so that survivors of childhood abuse will no longer have to undertake the additional and potentially very difficult task of persuading a court to overrule the limitation period. The need for the bill was clearly demonstrated in the Justice Committee’s stage 1 report and is also evidenced by the fact that the discretion that is allowed in existing law through the Prescription and Limitation (Scotland) Act 1973 has been used only once since that act was passed some 44 years ago.

The Faculty of Advocates and other organisations have warned that the removal of the time bar will lead to an increase—possibly a significant increase—in the number of court actions, and many of those court actions are likely to be extremely complex. The Justice Committee also identified that in its report. We need to recognise that the number of potentially complex and additional cases that will come forward will inevitably lead to resource implications for our courts, as has been outlined. That was the reasoning behind the amendment that my former colleague Douglas Ross lodged at stage 2 and Oliver Mundell’s amendment, which we discussed this afternoon. Obviously, I am disappointed that the Scottish Government chose not to accept that amendment, but I hope that ministers will keep the subject under constant and close review and that they will be ready to take the necessary action to ensure that our court system is always appropriately resourced and supported.

Ministers will be aware of the Health and Sport Committee’s recent inquiry into child protection in sport following the BBC Scotland investigation that revealed allegations that young football players were sexually abused by coaches during the 1970s, 1980s and 1990s. Although the committee’s inquiry focused on the safeguards that are currently in place for children and young people, it has been made clear by individuals who have contacted me privately that the public airing of those historical allegations may result in a real increase in the number of historical cases that come forward.

Childhood abuse is incredibly difficult for people to revisit and talk about at any stage in their lives, but it is vital that we send out the message to victims who have suffered abuse that they will be listened to and that we will put in place the resources that are needed to support them when they decide to come forward. It is important that survivors of childhood sexual abuse who decide to pursue civil claims do not face unacceptable delays because of a lack of resource in the court system.

I join other members in urging the Scottish Government to continue to look at how it will address the rights of survivors of abuse that took place before 1964. I welcome what the minister had to say when she covered that subject.

To conclude, I support the bill, which will result in appropriate action being taken to ensure that our legal system recognises that victims of childhood abuse are a unique category of pursuer because the nature of their abuse means that they often do not pursue claims until many years after the abuse took place. I hope that the bill will send out a clear message that our Parliament and Government want to do all that they can to support the victims of childhood abuse. I am confident that the bill can and will make a real difference to many survivors as they seek to take court action.

It is vital that we deliver justice for those who have suffered. I hope that the passing of the bill is another step towards truly delivering justice for people who have suffered at the hands of those whom we entrusted to protect and care for them.

16:04  

Johann Lamont (Glasgow) (Lab)

I welcome the opportunity to participate in the debate, and I recognise that members across the chamber want to make the legislation work. We would not be in the position that we are in if there had not been long, hard arguments about how to deliver justice for people who—because of the nature of the abuse that they suffered and the time in their lives when they suffered it—were routinely denied justice.

I will make some brief comments about Oliver Mundell’s amendment. Although some members voted against it on the basis that they believed that the bill would be stalled if it were agreed to, those who supported it believed that it was necessary in order to give people confidence that resources would match the theory behind the bill. I do not belittle the judgment of those who voted against the amendment, but they should not think that anyone who supported it did so in order to prevent the bill from being enacted.

I have heard the phrase “a blank cheque” being used, but we would not want to have a bounced cheque, either. That is why the question of resources really matters. It is not just a case of having dialogue with COSLA or whomever; the Scottish Government must underpin the bill and commit to finding resources to ensure that the rights that it provides are real for people in their lives.

We must recognise the role of survivors, survivors groups and those who understood the diverse needs and experiences of survivors and stood with them. I am talking not only about survivors who found their voices but those people who, when childhood abuse was not readily understood, stood with survivors, gave them a voice to talk about their suffering and saw the patterns of behaviour. I am talking about the women’s organisations that identified the connections between domestic abuse, sexual abuse and child abuse and insisted that those in the political process understood that the issue was something to do with them at a time when many organisations said, “This is not our business—this is not the business of the state.” We should recognise that the progress that we have made is their victory.

It is important to understand the journey. There was a time when there was simply denial that abuse occurred. Instead of confronting what was happening, the system moved perpetrators on to abuse again. There was a refusal to listen to young people who spoke about what was happening. Many young people were silenced and left to continue suffering, and many were scapegoated in their own homes or in the schools and the care system in which they found themselves. They were blamed for their own abuse, and their poor behaviour—which was a consequence of the abuse that they had suffered—was used to explain why they were in the situation that they were in.

There is a bit of unfinished business in relation to those professionals who had a duty of care and who, at a time when there were already policies that mentioned abuse, did not speak up for young people or understand properly what they were being told. I mention that because what now seems to be an inevitable journey of progress was not always so. If we do not recognise that the journey was long fought for or understand the scale and the pernicious nature of such abuse, how it might reveal itself and the long-term suffering that it can cause, justice will be denied and institutions will again say, “This is too difficult.”

We have had revelations about abuse in football clubs, sports clubs, community groups, care homes and at home. The truth is that predators take many forms, and we should not take a silo approach. We need to talk about why the abuse of power happens and how it is experienced so that we can protect our young people in the future.

Turning to the issue of a survivors strategy, I understand and recognise the importance of the inquiry into historic child abuse, but there are people whose suffering does not fall within its remit. Regardless of where the abuse was suffered, it is essential that there is a proper survivors strategy to support survivors, wherever they are. We must understand that, although some survivors are not ill, they need emotional support at particular times in their lives. They grieve the loss of their childhood and of the potential that they had as young adults, and they deserve support.

As well as having provision for survivors and protection through the justice system, we must have prevention by talking about abuse and ensuring that those who would perpetrate abuse against others understand the scale of society’s hostility to that and our determination to ensure that it does not happen. I know that the Government supports that position. I am grateful to the Government for the work that it has done to get the bill to this stage and look forward to supporting it at decision time.

The Deputy Presiding Officer

I ask the chamber to note that I may have to cut down speeches, because members are running over time. I call John Finnie, to be followed by Alex Cole-Hamilton.

16:09  

John Finnie (Highlands and Islands) (Green)

I think that it was Oliver Mundell who used the term “historic”, and a lot of people will view the bill as that.

I thank everyone who participated in our scrutiny of the bill—particularly the survivors. I am a member of the Justice Committee, which took testimony in private. Although the individuals will rightly remain anonymous, it is entirely appropriate to record that they were very worthy ambassadors for their group. We learned a lot from them.

A lot of excellent organisations offer support to childhood abuse survivors, and the police and the Crown Office and Procurator Fiscal Service are playing important roles, as we have also seen in relation to sexual crimes and crimes such as domestic violence. A proactive approach by the police gives people the confidence to come forward. Members have talked about the resources that are behind the Crown Office and Procurator Fiscal Service, on which the Justice Committee has also conducted an inquiry, and it is important that the people who support survivors—in the broadest sense—are properly resourced.

The Scottish Human Rights Commission’s “Action Plan on Justice for Victims of Historic Abuse of Children in Care” has been mentioned, and I commend the national confidential forum. The briefing that the Scottish Human Rights Commission gave members at the outset of the bill process states:

“Judicial and other remedies for human rights breaches must be practical and effective and equally accessible in practice as well as in law. This requires that they ‘should be appropriately adapted so as to take account of the special vulnerability of certain categories of person’ ... Legal limitation on claims may render the remedy ineffective.”

I take a rights-based approach, and the retrospective application of the bill is unusual. We have talked about prescription and the phrase “equitable to do so”. The legal system deemed it “equitable” to set the time bar aside on only one occasion, so it is entirely appropriate that we have a special limitations regime. The right to a fair trial is a human right for both sides of the equation, applying equally to the pursuer and the defender in a civil case.

This is very positive legislation, as removing the time bar removes one of the hurdles to justice. However, the time bar is just one of those hurdles. As I said in the stage 1 debate, legislation in itself is not sufficient; we need a range of measures including a special regime for childhood abuse.

I will quickly make a couple of other points.

I welcome the definition of a “child” as being someone under the age of 18. That approach is being reflected in other legislation.

The subject is emotive, as we have heard today, and the bill is about addressing the wrongs of the past and moving to a positive future. Nevertheless, there are challenges around what we know. For example, some people see a commercial challenge, and we have heard the insurers’ concerns about the number of people who will come forward. However, when we talk about statistics and numbers, we must remember that we are talking about individuals who all have a particular experience.

The way ahead is through prevention, as other members have said. That includes education, and there is a lot of good education in our schools. It is about obligations to challenge, whistleblowing policies and people feeling that they can challenge if they see wrong.

Regarding older survivors, I am sometimes involved with an organisation called SiMBA that helps people who have suffered a stillbirth. I met a woman in her late 40s who had never had that support, and she came forward many years after the event. People can always gain from support, and I hope that survivors will come forward.

There are other initiatives on the go. The position of children is important in the Domestic Abuse (Scotland) Bill. In my final eight seconds, I will plug the proposed children (equal protection from assault) (Scotland) bill, of which I am the proposer. It aims to protect children from assault and corporal punishment and will bring in equality there. I hope that my proposed bill will gain support in the future.

16:13  

Alex Cole-Hamilton (Edinburgh Western) (LD)

I remind colleagues of my entry in the register of members’ interests, about my career in the residential childcare sector before coming to the Parliament.

Coming to terms with the depth and extent of historic abuse has been the darkest awakening for our generation. As a society, we have failed untold numbers of those who were entrusted to the care of charities, churches, schools and social clubs who, in the course of the care and supervision that they should have enjoyed to the highest standards, were let down and damaged in the most horrific ways imaginable. We can never hope to know the full extent of the suffering, but by our actions here today, we can at least offer some access to justice and, by extension, an element of peace to those victims who can now finally tell their stories.

I am standing in for Liam McArthur, who cannot be here today, so I was not party to the committee proceedings and the powerful evidence that it received. However, I have worked with providers of care and survivors of abuse for much of my professional life. I understand the dehumanising and savage impact that abuse can have on people’s lives, whatever their age.

As the committee heard, it can take an average of 22 years for a survivor of abuse to feel able to come forward and talk openly about the abuse and its impact on their life. As such, the very existence of a time bar against civil proceedings saw a barrier to justice baked into our legal system. As with so many aspects of indemnity in our society, the system was tilted towards protecting providers from litigation rather than protecting the rights of individuals to seek justice in a timeframe of their choosing.

We live in a time when the walls that have protected abusers and cultures of abuse are steadily coming down—historic though they may be. Although the pursuit of criminal justice against the perpetrators of historic abuse has no time restraint, victims have faced such a restriction in obtaining satisfaction and redress through the civil courts. The bill rightly rectifies that situation for cases of abuse after 1964.

In the evolution of the bill we have seen an expansion of both definition and settings. To shift the focus of the legislation to the vulnerability of the victim, rather than the stage on which the abuse took place, puts us in step with the tenets of international best practice and human rights law. Similarly, the definitions of abuse against which justice can be sought have rightly been expanded to include all forms of abuse.

I am hugely gratified that following the contributions of my colleague Liam McArthur and other members, such as Mairi Evans, during the stage 1 debate, the Government to its credit saw fit to move an amendment at stage 2 to include neglect as a judicial offence against which victims might seek civil redress. That, too, brings us closer still to meeting the international gold standard.

We have had a consensual debate and I am grateful for that. The bill is a short but essential piece of legislation that will have wide-ranging implications for people who have lived in the shadow of an appalling thing that happened to them and who have suffered in the knowledge that their abusers were protected by organisations and institutions that so singularly failed in that crucial first line of their duty of care and which, in some cases, fostered a culture of silence and complicity.

This has been a time of uncomfortable revelation in the course of our nation’s story but I am confident that, when we pass the bill today, it will be seen as a time of long overdue justice as well.

16:17  

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I will begin by talking about my colleagues in the chamber. I have always thought that all of us who stand for Parliament and elected office, whatever our political traditions and beliefs, come here—with almost no exceptions—wanting to do good for the people whom we are elected to represent. That does not change the fact that I will disagree with members in other parties on matters that are important to me. However, as we reach the conclusion of the Limitation (Childhood Abuse) (Scotland) Bill, I am gratified to find that we are likely to find ourselves of a single mind.

I have no difficulty with the motivation behind Oliver Mundell’s amendment. Indeed, after the stage 2 amendment fell in committee, I had discussions about precisely how a new amendment might look. At the end of the day the amendment was not quite there—but that is only a personal opinion and does not matter greatly in the big scheme of things.

I pay tribute to Johann Lamont, who, like me, has been here for some considerable time. She has been a tireless campaigner—on occasion, an extremely irritating, but proper one—on the rights of the disadvantaged in our society. Although we heard some pretty robust words today, we should utterly respect the motivation behind them. We are of one mind in supporting the bill.

The debates and disagreements that we have in Parliament will not be understood in any shape or form by the people whom we seek to help. Their attitude is simple. They want us to get on with it and do something. I think that that is where we have got to.

In committee, we heard from people who suffered childhood abuse. Their stories were moving beyond belief. I say that as someone whose general practitioner father—I always refer to my history—had to deal with childhood abuse. He was the GP responsible for pupils in a boarding school, and he came across some examples of abuse in that context. The issue was discussed around the dinner table, because it was thought that we children should understand what goes on. Indeed, my father sought our views.

However, nothing that we discussed around our dinner table compares with the stories that committee members were told. The stories did not quite move me to tears, but only for the reason that I did not want to let down the person who was telling their story by crying. I felt like crying—I really did—and I know that other members were in the same position.

What we do today is a noble and proper thing, which has been needing to be done for a long time. However, let us not imagine that by putting words on a page in the statute book we will have completed the job. That is not the case. We must ensure that the resources are in place—I signed up to the part of the committee’s report that said so, and I am confident that that will happen.

There are new threats coming over the horizon, with which we will have to engage. Immediately before this debate, I had an hour’s briefing from the Internet Watch Foundation, which is involved in addressing child abuse on the internet. We must remain alert to the new threats and protect future generations from them, as well as properly addressing abuse that took place in the past.

16:21  

Jeremy Balfour (Lothian) (Con)

I will keep my speech fairly short, as many members have expressed a lot of what I had written down and I want to give others a chance to speak. We have had a consensual debate, but I want to raise a couple of issues.

In their evidence to the committee, a number of witnesses questioned the assumptions in the financial memorandum. Police Scotland said that the figure of 2,200 for the cases that might initially come forward was a conservative estimate and suggested that it would be appropriate to carry out a further scoping exercise. I hope that the Government will do the required work at an early stage.

Another concern that was shared by witnesses at stage 1 was about the court system’s capacity to deal with cases. It is important that people who have waited for many years to raise an action are not discouraged by lengthy and avoidable delays. I would be interested to hear from the minister how she thinks that the new arrangements will work, in a court system that is already very busy.

The Faculty of Advocates said that the removal of the time bar will lead to more cases, which could put strain on the courts and delay cases getting heard. We need to ensure that the court system has the right resources.

Concerns were also expressed about the potentially negative impact on survivors of going to court. As members said, that will not be the course of action for everyone. The Faculty of Advocates pointed out the

“Significant emotional impact on those raising actions”,

and suggested that “litigation is inherently stressful” and might do “more harm than good.”

If people are brave enough to come forward and raise appropriate actions, we must ensure that there is support to help them through the complex legal procedures. It is vital that the appropriate support and advice are in place to assist victims and survivors of childhood abuse. I made that point in the stage 1 debate.

The Scottish Government must give the appropriate consideration, ensuring not only that the right things are in place financially but that the emotional support is provided, too.

It is our duty as a Parliament to ensure that the bill meets the aspirations of the people who have suffered childhood abuse. As they have waited so long for this opportunity, it is incumbent on each and every one of us to give the victims the best legislation that is within our gift, and to ensure that what happens after the legislation gets royal assent is the best that can be put in place.

16:25  

Rona Mackay (Strathkelvin and Bearsden) (SNP)

The bill that is before Parliament today is important to thousands of the most vulnerable and wronged people in our society. They have been barred from gaining access to justice simply because they were unable to bring a civil action within a three-year period.

At the outset, I thank the witnesses who gave evidence to the Justice Committee for their courage and bravery. Their evidence was difficult for us to hear, but it must have been agonising for them to recount, and I cannot commend them highly enough. They spoke out so that never again would those vile crimes be covered up and to ensure that there is no hiding place for abusers.

Three years is not long enough for survivors to garner the strength to proceed with civil action against their abusers. They have been emotionally terrorised and stricken with fear and guilt. They simply need longer to attempt to deal with what has happened to them. We are not discussing a court action about neighbours fighting over land or about suing a company for damages; it is about people seeking recognition and an apology for being robbed of a childhood and sentenced to a lifetime of unimaginable emotional distress.

The terrible abuse that survivors suffered during childhood—sexual, physical and mental abuse—was a life sentence. I am pleased that the bill was amended at stage 2 to include neglect, such a damaging form of abuse with lifelong effects. The cruelty that was bestowed upon survivors, often by people they trusted and to whose care they were entrusted, left them feeling worthless and violated.

Some people have raised concerns that the bill will open the floodgates to those seeking compensation and that that will be costly. That was at the root of Oliver Mundell’s amendment today. Apart from being unworkable, the amendment would have delayed justice to many survivors and sent out entirely the wrong message: that they would get justice only if those who were ultimately responsible could afford it. I know that that was certainly not the intention behind Oliver Mundell’s amendment, nor was it the intention of those who supported it, and I commend Oliver for his moving and heartfelt speech. I also agree with Johann Lamont’s comments about the need for a survivors strategy.

Like my colleague Stewart Stevenson, I am sure that there is not a single person in the chamber who does not support the bill. However, the reality is that, at this stage, the number of people seeking access to justice for historical crimes is unknown, and estimates vary widely. The bill is not a panacea for survivors. The Scottish Human Rights Commission believes that the vast majority of survivors will not go down the civil justice route. Many survivors simply could not face the prospect of resurrecting the horrors that they have kept locked away in a box throughout their lives, and bringing that to court will never be the answer for them.

The committee found a common thread throughout the testimonies: most survivors would not pursue the matter for the money, even if they brought it to court. Many of them simply want the perpetrators brought to justice and an apology for the terrible injustice and violation that they suffered. Many of them have been so emotionally damaged that they have been unable to attain a good standard of living. Their financial potential has not been realised, and they have struggled to make ends meet. But how can we put a price on what any of them has suffered? It is simply too hard for any of us to imagine.

If the bill brings any light at the end of a long, dark tunnel for some survivors, then I am happy to commend it to the Parliament.

16:29  

Mary Fee (West Scotland) (Lab)

I begin my speech by reaffirming the support of Labour members for the Limitation (Childhood Abuse) (Scotland) Bill. I take this opportunity to thank the Government, the Minister for Community Safety and Legal Affairs and the external organisations for their input throughout the Justice Committee’s evidence sessions.

At stage 1 of the bill proceedings, I praised the outstanding bravery of the survivors of childhood abuse in giving us their input throughout the process. It is important that today I repeat my admiration for the survivors in helping to progress the bill. Without their bravery, patience and co-operation, the bill would not have been possible.

The committee heard from a range of stakeholders that removing the time bar will create choices that some survivors will prefer to make and some will not. At stage 1, I called for the right support to be made available to survivors in setting out their options, and I cannot stress enough the importance of that. In taking action through the courts, the survivor will have to face a series of obstacles in providing evidence and reliving the horrors that they faced. That is why Laura Dunlop QC warned that some action could do “more harm than good”, which is a quote that I highlighted at stage 1 and one that must be re-emphasised. It is of the utmost importance that throughout the process and for as long after the process as they require, all survivors have access to support and guidance that is tailored to their needs, to ensure that they do not suffer more trauma.

I thank the minister for the amendment that was lodged at stage 2. As Alex Cole-Hamilton said, ensuring that neglect is covered by the definition of abuse gives the certainty that many of those who provided evidence to the committee asked for. Although neglect was covered in the bill as introduced, giving the term its own place provides clarity for survivors, as Liam McArthur highlighted at stage 2. The inclusion of neglect rightly widens the scope of the bill and reflects the evidence that we heard and the concerns that survivors raised about the definition. The wider definition will ensure maximum support and protection for all survivors.

Today is a historic day. The passing of the bill will provide redress that thousands of survivors of childhood abuse have been unable to access for decades. It is clear from this afternoon’s debate that all parties represented in this chamber are committed to the principles and passing of the bill.

No speech was more powerful or persuasive today than Johann Lamont’s. There is a clear consensus that the appropriate support must be available to all survivors who decide to pursue a civil action, and that all survivors should have guidance if they choose to take forward a claim.

In closing for Scottish Labour, I would like to reaffirm our support for the bill, and once again I thank every survivor for their bravery, patience and support during the legislative process of the bill. From the consultation process through to the passing of the bill today, the bravery, patience and support that survivors have shown has been commendable.

The Deputy Presiding Officer

Before we move on, I remind members that if they contribute in the debate they should be in the chamber for the beginning of the closing speeches.

16:33  

Margaret Mitchell (Central Scotland) (Con)

I welcome the bill, which aims to increase access to justice for survivors of childhood abuse. I pay tribute to those survivors, who have over many years lobbied for the three-year limitation period for historical childhood abuse claims, also known as the time bar, to be abolished. As Rona Mackay and Mary Fee said, it took considerable courage for those survivors to give evidence to the Justice Committee, and we were most appreciative of that. I want to personally acknowledge and thank the members of the cross-party group on adult survivors of childhood sexual abuse for their valued input.

The removal of the three-year time bar for specific cases involving historical childhood abuse puts an end to a previously insurmountable barrier for survivors, and in doing so implements a change for the better. However, as the minister and members have stressed, it is important to note that pursuing a civil action will not be the right solution for all survivors. In that sense, as members have said, the bill will not be a panacea. It is therefore essential that expectations surrounding pursuing a civil action are managed, in an effort to avoid raising false hopes, while at the same time alternatives to the civil court process must be highlighted.

One of the main alternatives is the Apologies (Scotland) Act 2016, which came into force on Monday 19 June. I introduced that legislation as a members’ bill and it was not just welcomed but actively promoted by survivors on the cross-party group. It is a matter of immense sadness to me that the Government’s secondary legislation, which has been proposed and passed and which involved complex issues, potentially thwarts the aims of the 2016 act.

In the scrutiny of the Limitations (Scotland) Bill, the provisions that raised the most concern were new sections 17C and 17D of the Prescription and Limitation (Scotland) Act 1973. New section 17C of the 1973 act allows for certain past cases that have been disposed of by decree of absolvitor to be reraised. The concern was that that could lead to a breach of the defender’s human rights, in respect of their right to a fair trial and their right to peaceful enjoyment of their possessions. Furthermore, by overturning a decree of absolvitor there was a very real concern that it would, in turn, undermine a fundamental principle of Scots law.

New section 17D of the 1973 act provides a safeguard for defenders, in an attempt to ensure that their convention rights are not breached. However, despite the minister’s reference to an adjustment to the explanatory notes and her assurance that the provisions will not set a precedent for other areas of law, it is fair to say that the concerns remain. That being the case, if the legislation is passed, it will be down to the courts to decide.

Scrutiny also raised issues concerning the absence of detail regarding the bill’s financial and resource implications—for example, those relating to the administrative burden that the bill may place on public bodies, a point that Oliver Mundell sought to address with his amendment and in his contribution to the debate. As Johann Lamont, Claire Baker, Miles Briggs, Jeremy Balfour and others pointed out, the financial implications of the bill for local authorities, charities and support services still require to be addressed and resolved. The need for adequate resourcing featured in a number of members’ statements.

Notwithstanding the concerns outlined above, the bill helps to achieve access to justice for survivors of historical child abuse by removing the time bar obstacle and the whole Parliament can celebrate that fact. I therefore confirm that the Scottish Conservatives will support the bill at decision time.

16:37  

Annabelle Ewing

This has been an important and constructive debate at stage 3. I thank all members for their contributions, to which I listened carefully, and for supporting and indicating their support for the passing of the bill. As has been recognised, the bill is an important step in ensuring access to justice for survivors of childhood abuse; the bill is designed to remove a barrier that has in the past proved impossible for survivors to overcome.

The bill acknowledges the unique position of survivors, recognising the abhorrent nature of the abuse, the vulnerability of the child at the time, and the profound impact of abuse. In passing the bill today, Parliament will be recognising that survivors have been let down repeatedly. They were severely and fundamentally let down by their abuser and by the adults who were meant to protect them at the time, but they have also been let down by a justice system that has effectively denied them access to a remedy.

It has been acknowledged, including by many members this afternoon, that raising a civil action may not be the right way forward for everyone. Each individual survivor will have to take their own view. However, what the bill does is to widen the options that are available to survivors seeking redress. Of course, raising a civil action is still a challenging task and I agree with the members who have pointed out—both today and during previous debates on the bill—the importance of ensuring that survivors are supported. Support works best if it is based on individual needs, which means that the most effective support will be different for each individual survivor.

Through the survivor support innovation and development fund, which has a budget of £1.8 million for this financial year, we fund third and voluntary sector organisations to provide a wide range of services, including practical and emotional support, information provision, creative therapies, counselling, employability, peer-to-peer support and befriending programmes.

It is also important that survivors are able to access quality legal advice. Survivors will be able to apply for legal aid and will no longer be required to demonstrate a reasonable prospect of success in overcoming the time bar hurdle, which has proved insurmountable for survivors in the past. We are also working with the Law Society of Scotland to ensure that solicitors are well placed to support survivors through the legal process, including looking at what training could be made available.

The potential impact on the courts has been raised in this afternoon’s debate by a number of members. Just as we cannot quantify at this stage the potential impact on local authorities and other bodies, we cannot with absolute certainty say what the impact will be on the Scottish Courts and Tribunals Service. The estimates that we have, including those relating to when cases would be lodged, are presented in the financial memorandum. Following recent discussions that officials have had with the courts service, they are of the view that those cases could be absorbed within current business programming. There is, of course, no certainty around those numbers, as we have previously discussed at length. We are in on-going discussions with the courts service on how best to monitor the impact and will consider any issues that may arise.

The impact on local authorities and on third sector and voluntary organisations has been a key theme in the consideration of the bill and in today’s debate. It is important to keep in mind that COSLA and many third sector organisations absolutely support the bill. As I have made clear, I recognise that there will be financial and other resource implications, and that costs might go beyond the costs that are directly associated with defending actions. However, as we have discussed in detail this afternoon, at this point it is not possible to say what those costs will be. This is why I have committed to keeping the situation under close review and to carefully considering evidence about the impact of the bill.

With regard to other issues that have been raised, such as the ability to look at previously litigated cases, the decree of declarator and so forth, I would say in summary that the bill has been about striking a balance between the rights of the survivor and the rights of the defender. We believe that we have found the correct balance, and we feel that we have demonstrated that in the presentation of the provisions of the bill and by ensuring that we are saying what the mechanism is by which the courts must make that assessment. We feel that we have worked hard to find that balance, and I am pleased to note that that is the view of many members in the chamber.

In conclusion, I once again thank the Justice Committee for its detailed scrutiny of the bill and all those who provided written and oral evidence. I thank the Scottish Human Rights Commission for its extensive work in this area and all other individuals and organisations who have engaged in this process. As I said in my opening remarks, and most importantly, I thank all survivors, whose bravery and persistence have secured the proposed legislation that we are about to vote on this evening.

I am proud to be here today to support the passing of the bill. We should not underestimate the significance of the message that we are sending today: that we will always seek to support and respect those in society who have been harmed and that access to justice for all of our citizens is at the heart of our values. I ask that members support the motion and agree to pass the Limitation (Childhood Abuse) (Scotland) Bill.

The Presiding Officer (Ken Macintosh)

There is one question to be put as a result of today’s business, on the motion to pass the Limitation (Childhood Abuse) (Scotland) Bill. We will have a division on the motion; I will not just ask whether members agree or not. That is because, under the new procedures, although Parliament has decided that we do not need a supermajority for the bill, that decision is challengeable. The only way of ensuring that it cannot be challenged is by registering that two thirds of eligible members have voted for the bill—that is, 86 members. Did you all follow that? Of course you did. It means that we cannot pass the bill by acclamation and we have to have a division.

The question is, that motion S5M-06201, in the name of Annabelle Ewing, on the Limitation (Childhood Abuse) (Scotland) Bill, be agreed to. Members should cast their votes now.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Evans, Mairi (Angus North and Mearns) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 115, Against 0, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Limitation (Childhood Abuse) (Scotland) Bill be passed.

The Presiding Officer

The Limitation (Childhood Abuse) (Scotland) Bill is therefore passed. [Applause.]